CHANDI PRASAD Vs. OM PRAKASH KANODIA

JUDGEMENT

(1.) THIS petition has been filed under Section 482, Cr. P. C. for quashing the proceedings before the Sub-Divisional Magistrate, Naugarh, district Basti under Section 145, Cr. P. C. A dispute arose in respect of the premises in which a school was being run in Baruni Bazar in the name of Amar Bal Vidya Mandir. It was being run since 1971 in the aforesaid name by the managing committee comprising of the present applicants including the pradhan of the village, namely, Chandi Prasad. The applicants claimed that the school building was constructed on banjar land belonging to the Gram Sabha. The applicants were described as the second party. The first party consisted of Balmukund Giri (now dead), Om Prakash Kanodia and Haripati Tripathi. They are now the opposite parties. They claimed that the building was constructed on the land belonging to Balmukund Giri which he had obtained on a patta thirty years back and that Balmukund Giri himself had started the school in the year 1971 and had appointed the first party as its managing body to run the school. But he felt dissatisfied and in 1974 he appointed another managing committee to run the school by means of a registered deed. That managing committee consisted of the persons who are opposite parties Nos. 1 and 2 in this petition besides Balmukund Giri himself. The name of the school too was changed into Adharshya Amar Bal Vidya Mandir. It appears that both the parties started running parallel schools and the police reported that there was an apprehension of the breach of the peace. The learned Magistrate then passed the preliminary order dated 22-7-1974 and started proceedings under Section 145, Cr. P. C. Subsequently another station officer of Police Station Dhebarwa submitted another report dated 3-11-1974 to the effect that there was no longer any apprehension of breach of the peace. However, a third report was submitted by the station officer, police sation Dhebarwa dated 2-12-1974 to the effect that there was an apprehension of breach of the peace and the case was of grave emergency. A copy of that report has not been filed by any of the parties. On the basis of that report, the Sub-Divisional Magistrate, Naugarh ordered attachment of the school building on 4th of December, 197. 4 considering the case as of grave emergency. However, even after passing this order, the learned Magistrate proceeded with the case under Section 145, Cr. P. C. with a view to pass the final order under that section. The petitioners have filed this petition for quashing those proceedings.

(2.) SRI G. P, Mathur, learned Counsel for the petitioners has argued that after the order of attachment was passed by the learned Magistrate under Section 146 (1) Cr. P. C. (New), he had no jurisdiction to continue with the proceedings under S. 145 Cr. P. C. According to him, attachment was to continue until the rights of the parties were determined by a competent court exercising civil jurisdiction. He has conceded that it was open to the Magistrate to make an enquiry only for the purpose of finding out whether apprehension of breach of the peace still existed or not as the Magistrate could withdraw attachment at any time under the proviso to Sub-section (1) of Section 146, Cr. P. C. (New ). He has also argued that the proceedings under Section 145, Cr. P. C. were illegal from the very beginning and no attachment should have been made as the dispute was only with regard to the administration of the school which cannot be considered to be a dispute within the meaning of Section 145, Cr. P. C. as was held in the case of Onkar Nath Tiwari v. Ram Anjore Misra (1973 Cri LJ 1885) (All ). So far as the last argument is concerned, it may be observed that in the present case there is a dispute about the possession and ownership of the building itself as it was claimed to be his building by Balmukund Giri, who is now dead. He claimed it to be his private property and formed a trust by a registered deed appointing the opposite parties 1 and 2 as members of the managing committee. On the other hand the petitioners claimed1 that th school building was constructed on a banjar land by the former managing committee and that it was not the personal property of Balmukund Giri. The dispute does appear to be of civil nature which will have to be decided by a civil court.

(3.) IN the present case, I "shall, therefore, confine myself to the effect of the attachment order passed under Section 146 (1) Cr. P. C. (New ). Section 146 (1) Cr. P. C. x{new) reads as follows: