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2014 DIGILAW 1269 (JHR)

Shiv Kumar Singh v. State of Jharkhand

2014-12-16

RONGON MUKHOPADHYAY

body2014
Judgment : Heard learned counsel for the petitioners and learned counsel for the State. No one appears for the opposite party no. 2 inspite of the fact that notice had been served validly upon him. 2. In the present application the petitioner has challenged the order dated 04.09.2012 passed by the learned Sub Divisional Magistrate, Barhi, Hazaribagh in Case No. 13/12 whereby and whereunder a proceeding u/s 145 Cr.P.C. was initiated over a land measuring 0.41 decimal under Khata No. 44, plot no. 899 situated at Mouza Chauparan, P.S. Chauparan, Distt. Hazaribagh. It has further directed to maintain status quo over the land in question. 3. It appears that in the year 2012 itself at the instance of the father of the o.p. No. 2 herein a proceeding u/s 144 Cr.P.C. was initiated against the petitioner before the learned Sub Divisional Magistrate, Barhi, Hazaribagh with respect to the same plot of land and the said case being complaint case no. 60/12 was disposed of vide order dated 16.08.2012 and rule was made absolute against the first party, father of the opposite party no. 2 herein. Immediately after termination of the aforementioned proceeding u/s 144 Cr.P.C. an application was filed by the opposite party no. 2 before the learned Sub Divisional Magistrate Barhi, Hazaribagh for initiation of a proceeding u/s 145 Cr.P.C. and on the said application which was filed on 04.09.2012 notices were issued after the proceeding was initiated and order was passed to maintain status quo . 4. This order has been challenged by the petitioner in the present application. Learned counsel for the petitioner while assailing the impugned order dated 04.09.2012 has submitted that suppression of the earlier proceeding u/s 144 Cr.P.C. by the father of the opposite party no. 2 is palpable and the learned Sub Divisional Magistrate, Barhi without calling for a police report straightaway issued notice and initiated proceedings u/s145 Cr.P.C. 5. Learned counsel for the petitioner submits that the order for initiation of a proceeding u/s 145 Cr.P.C. was not in consonance with the legal provisions. To support his contention he has referred to a judgment in the case of Raj Nandan Singh Vs. State of Bihar & Anr. Learned counsel for the petitioner submits that the order for initiation of a proceeding u/s 145 Cr.P.C. was not in consonance with the legal provisions. To support his contention he has referred to a judgment in the case of Raj Nandan Singh Vs. State of Bihar & Anr. reported in 2010(4) in Eastern India Criminal Cases, 375 in which the Hon'ble Patna High Court in similar circumstances had held thus:- “Besides hearing learned counsel for the parties, I have also perused the materials available on record. Prima facie, the Court is of the view that once a proceeding under Section 144 CrPC had ended against opposite party No.2 and in favour of the petitioner, then at subsequent stage that too, within 13 days from the order while filing petition for initiation of a proceeding against the petitioner in respect of same land, it was bounded duty on the part of opposite party No. 2 to give the detail of the earlier proceeding particularly the fact that earlier proceeding had recently ended against the opposite party No.2 . In view of earlier order, the learned Magistrate before initiating proceeding under Section 145 of the Cr PC , in the facts and circumstances of the present case was required to obtain a report from the police and only thereafter, he was entitled to initiate proceeding under Section 145 of the Cr PC. The fact aforesaid indicates that one way or the other, the opposite party No.2 was adamant to disturb the peaceful possession of the petitioner and as such even though he failed to satisfy the learned Magistrate in earlier proceeding, which was initiated on his behalf itself that he was not having exclusive and peaceful possession over the land in question, he suppressed the fact while filing the petition before the Magistrate.” 6. Learned counsel for the State has submitted that at this stage even if some infirmities are present in the order passed by learned Sub Divisional Magistrate, Barhi on 04.09.2012 no interference can be made in the facts and the circumstances of the case. 7. After going through the records and after hearing the parties it is evident that immediately on conclusion of the proceeding u/s 144 Cr.P.C. on 16.08.2012 on an application made by the opposite party no. 7. After going through the records and after hearing the parties it is evident that immediately on conclusion of the proceeding u/s 144 Cr.P.C. on 16.08.2012 on an application made by the opposite party no. 2 herein on 04.09.2012 a proceeding was initiated on the same day u/s 145 Cr.P.C. for which show cause notice was issued and order of status quo was passed which was not in accordance with law in view of the reasoning noted hereinunder. 8. The petition which had been filed by the O.P. No. 2 for the initiation of a proceeding u/s 145 Cr.P.C. against the petitioners have been brought on record by way of a supplementary affidavit. Perusal of the said petition reveals that only a fleeting reference has been made with respect to the earlier proceeding u/s 144 Cr.P.C. but no details have been given as is the requirement under law. The learned Sub Divisional Magistrate, Barhi instead of getting the earlier proceeding verified embarked upon the exercise of initiating the proceeding and passing an order of status quo which reveals total non application of mind. Moreover, another vital aspect with respect to calling for a police report before initiating the proceeding was given a complete go by and the impugned order was passed in hot haste. The impugned order being bereft of any legal sanctity needs interference by this court. 9. In the facts and circumstance enumerated above the order dated 04.09.2012 passed in C.P. No. 13/12 initiating the proceeding u/s 145 Cr.P.C. is hereby quashed. 10. Since the main criminal miscellaneous application is being disposed of, I.A. No. 5146 of 2014 which has been filed for stay of the operation of the order dated 04.09.2012 passed by the Sub Divisional Magistrate, Barhi in case no. 13/12 is also disposed of as infructous. 11. This application is accordingly allowed. Application allowed.