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2017 DIGILAW 2053 (RAJ)

Narendra Singh v. State of Rajasthan

2017-09-13

PUSHPENDRA SINGH BHATI

body2017
JUDGMENT : Pushpendra Singh Bhati, J. 1. The petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C., 1973 against the order dated 07.01.2014 passed by learned Special Judge SC/ST Cases and Additional Sessions Judge, Bikaner in criminal revision No. 48/2013 by which order of Additional District Magistrate (City), Bikaner dated 07.01.2009 made under section 145 and 146 Cr.P.C., 1973 was upheld. 2. On 13.12.2001, the receiver took the possession of 30 shops in the concerned market. The Fard Kurki made on 13.12.2001 clearly shows the particulars of the persons from whom the receiver took the possession. The copy of the Fard Kurki is perused, which reflects the aforesaid particulars. 3. While the compromise took place between the parties, the SHO concerned sought clarification regarding release of the said property however, without giving any opportunity of hearing in accordance with recovery memo, the learned authority has proceeded to release the shops in favour of one person only i.e. Tola Ram/respondent No.2. 4. A bare perusal of the recovery memo reveals that the property ought to have been released in favour of the person, from whom the possession thereof has been taken. But without due application of mind, the shops in question have been released by the learned Authority in favour of one person only i.e. Tola Ram/respondent No. 2, which is even contrary to the relevant provisions of law. Thus, apparently, the impugned orders suffer from infirmity, as Sections 145 & 146 Cr.P.C. cast a duty upon the concerned authority to release the property only in favour of the respective person, from whom possession thereof has been taken, until and unless there is a finding of a competent civil court regarding the title, which is not so in the present case. The said exercise is required to be done only after hearing all the parties concerned for the purpose of passing appropriate orders after due application of mind. 5. On bare perusal of the impugned order, it is reflected that a blanket order has been passed while handing over the possession of the shops only to one person. 6. Learned counsel for the petitioner has relied upon the judgment of Shamim Alam v. Sajjid Hussain and Another reported in 2006(1) Western Law Cases (SC) Criminal 153. The relevant portion of the judgment reads as under: "1. Leave granted. 2. 6. Learned counsel for the petitioner has relied upon the judgment of Shamim Alam v. Sajjid Hussain and Another reported in 2006(1) Western Law Cases (SC) Criminal 153. The relevant portion of the judgment reads as under: "1. Leave granted. 2. Before the High Court, a petition was filed under section 482 of the Criminal Procedure Code, 1973 for quashing the order dated 25.05.2004 passed by the Sub-Divisional Magistrate (Defence Colony), New Delhi, under Section 145 Cr.P.C., 1973 in respect of Flat No. 544/14, Zakir Nagar, Okhla. The High Court dismissed the petition by a non-speaking order. Against that order of the High Court the appellant has filed the SLP. 3. The arguments were addressed before us for some length on the question as to who was in possession of the property on the relevant date. It is also contended that there being no apprehended breach of peace as per the observation made by the Sub-Divisional Magistrate, there is no need to pass an order under Section 145 Cr.P.C., 1973 4. Though the order of the Sub-Divisional Magistrate runs to three to four pages, no reasons are set out for reaching the conclusion that the property was in possession of Sajjid Hussain i.e. the respondent. The learned Magistrate merely observed that on perusing the records, he was satisfied that Sajjid Hussain, the respondent was in actual possession of the property at the time of passing the preliminary order under Section 145(1) Cr.P.C., 1973 Firstly, there is no discussion about the details of the report submitted nor the documents referred to in the said report. We are informed by the counsel for the appellant that the police has submitted a report while the matter was pending in the High Court in the writ petition filed by the respondent which supports the appellant's contention. Be that as it may, we are of the view that the Sub-Divisional Magistrate should have given specific reasons with reference to the material placed on record rather than making a bald observation that the respondent was in actual possession of the property. Moreover, what is stated by the police officer in his report is not the final word. The Magistrate ought to apply his mind independently. Moreover, what is stated by the police officer in his report is not the final word. The Magistrate ought to apply his mind independently. That apart, we find that the finding of actual possession of the respondent was with reference to the date of preliminary order which is not the relevant date that is contemplated by the provisions of Section 145 Cr.P.C., 1973 For these reasons, we set aside the impugned order and direct the Sub-Divisional Magistrate to consider the matter afresh with utmost expedition after giving note to the petitioner and respondents. 5. The appeal is disposed of accordingly." 6. Learned Public Prosecutor as well as learned counsel for the respondent have refuted the submissions made on behalf of the petitioners. 7. After hearing learned counsel for the parties and perusing the record of the case, this Court is of the opinion that the learned authority and learned court below ought to have considered the fact that the recovery memo had the necessary particulars in respect of 30 shops, possession of which was taken by the receiver from the respective persons, as indicated here-in-above. Therefore, it was the duty of the receiver to release the shops in favour of the respective owners only or in case there is something otherwise, an opportunity of hearing should be given to all the parties concerned and thereafter, appropriate orders should be passed after due application of mind. 8. In view of the aforesaid discussion, the present misc. petition is allowed and the impugned order dated 07.01.2014 passed by learned Special Judge, SC/ST Cases and Additional Sessions Judge, Bikaner; and order dated 07.01.2009 passed by learned Additional District Magistrate (City), Bikaner are hereby quashed and set aside and the matter is remanded back to the learned authority for passing appropriate orders afresh, strictly in accordance with law within a period of six months from today.