SAEED KHAN Vs. ATUL KUMAR SAHU

JUDGEMENT

(1.) The instant petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity "Cr.P.C.") against the order dated 05.10.2018 passed by the Sub Divisional Magistrate in Case No.694/2007 (State v. Atul Sahu and Another). By such order, the Sub Divisional Magistrate has passed an attachment of the property which is subject matter of the lis and further has issued a direction to the Station House Officer, Police Station Ganj to be appointed as Receiver of the said property.

(2.) The relevant necessary facts for adjudication of the case is that one complaint/ istegasa was prepared by the Station House Officer, Police Station Ganj on 25.10.2017 before the Sub Divisional Magistrate, Raipur. The said proceeding emanated from a complaint made by the Respondent No.1 Ashok Sahu that the Petitioner Saeed Khan has forcefully and wrongfully has taken over the possession of the Shop and Godown constructed over Plot No.6, 7, 8 and 9 situated at Khasra No.475, Maudahapara, Raipur. It was alleged that the said possession was taken by breaking open the lock. The Sub Divisional Magistrate subsequently vide order dated 13.02.2009 passed an order after enquiry under Section 145 of Cr.P.C. on the basis of the statement and document available on the record and the Sub Divisional Magistrate found the possession of the petitioner over the disputed property, which was two months prior to the date on which the complaint was received. The said order when was subject of challenge was set aside and the case was remanded back to the Sub Divisional Magistrate for fresh consideration after affording an opportunity of hearing by an order dated 11.01.2011 passed in Criminal Revision No.231/2010. The petitioner herein subsequently alleged that the said property was sold to the Respondent No.2 namely Ajay Bajaj by the Respondent No.1 Ashok Sahu. Subsequently, the Respondent No.1 moved an application on 28.10.2015 before the Sub Divisional Magistrate for appointment of Receiver and attachment of the property. The said application was duly replied by the Petitioner. Subsequently, the report was called from the police twice and on the basis of the police report dated 27.02.2018 and 04.06.2018, the Sub Divisional Magistrate found that there is all likelihood of breach of peace and the case is to be one of the emergency, thereby the impugned order was passed.

(3.) Learned counsel for the Petitioner would submit that irrespective of the ownership of property undisputedly the possession of the Petitioner existed over the disputed property. It is further submitted that as per the averments of the Respondent alone, the Petitioner was in possession. Consequently, the order of attachment and appointment of Receiver under Section 146 of Cr.PlC. cannot be issued. Reliance was placed in the case of Ashok Kumar v. State of Uttarakhand and Ors. reported in (2013) 3 SCC 366 and would submit in the likewise issue unless the eminent danger exists, the impugned order of the like nature cannot be passed.