JAI PRAKASH MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) Three Petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 27.2.2001, passed by the learned Sub-Divisional Magistrate, Gogri in Case No. 497(M) of 2000, by which the learned Magistrate has converted the proceeding initiated under Section 144 of the Code of Criminal Procedure into a proceeding under Section 145 of the Code of Criminal Procedure. The Petitioners have further prayed for quashing of an order dated 2.5.2001 passed by the learned Magistrate whereby a receiver was appointed in respect of disputed land in the said proceeding.

(2.) Short fact of the case is that on the basis of an application filed on behalf of Opposite Party No. 2 to the Gogri Police mentioning therein that there was a dispute with regard to an area of 2 Bigha agriculture land appertaining to Khata No. 1, Plot No. 359 at Mauza- Baisa, the Police conducted an enquiry during which second party (Petitioners) were absent. However, the Gogri Police submitted a report to the learned Magistrate mentioning therein that there was apprehension of breach of peace in between the parties in respect of the said land. On the basis of report submitted by the Gogri Police, the learned Magistrate initiated a proceeding under Section 144 of the Code of Criminal Procedure and directed for issuance of notice to the parties. Subsequently, by an order dated 27.2.2001, the learned Sub- Divisional Magistrate, Gogri in Case No. 497(M) of 2000 converted the proceeding initiated under Section 144 of the Code of Criminal Procedure to a proceeding under Section 145 of the Code of Criminal Procedure and again, show cause notice was issued to the parties and the learned Magistrate by the impugned order i.e. order dated 2.5.2001 appointed a receiver in respect of the disputed land. The learned Magistrate while passing the impugned order rejected the petition filed on behalf of Petitioners (second party) for dropping the proceeding under Section 145(5) of the Code of Criminal Procedure. Aggrieved with both the orders i.e. order dated 27.2.2001 as well as order dated 2.5.2001, the Petitioners approached this Court by filing the present petition which was finally admitted on 9.7.2002. While admitting, lower court record was called for and same has already been received and lying with the record of the present case.

(3.) Sri Upendra Prasad, learned Counsel for the Petitioner while challenging the impugned orders has raised several points. It was firstly submitted that the land in question actually belongs to the Petitioners since same had come in their share through oral partition in between the family members of the Petitioners and Opposite Party No. 2 and he was coming in peaceful possession over the land in question since the date of partition and was also growing crops over the same land. It was submitted that even the Opposite Party No. 2 had admitted that both the parties were 'Gotias' being their common ancestors. Learned Counsel for the Petitioner has vehemently argued that in respect of partition of the land in question and other properties a suit vide Title Suit No. 57 of 1993 was pending in which father of Petitioners as well as father of opposite party No. 2 were party to the said proceeding. It was submitted that while making a prayer for withdrawal or cancelling order of initiation of Section 145 proceeding the Petitioners had filed their show cause before the learned Magistrate wherein they have specifically mentioned regarding pendency of the suit i.e. Title Suit No. 57 of 1993 since long. However, the learned Magistrate while either converting the proceeding from Section 144 to Section 145 of the Code of Criminal Procedure or even at the time of appointing receiver by the order dated 2.5.2001 had simply ignored the said point and he had not at all discussed in its order regarding the pendency of the suit. It was submitted that since the dispute in respect of the land in question was already subject matter before the court of competent jurisdiction the learned Sub-Divisional Magistrate was not at all authorized to pass order either for initiation of proceeding under Section 145 of the Code of Criminal Procedure or for appointing the receiver by the order dated 2.5.2001 and accordingly, it was prayed to set aside both the orders.