SHEO MANGAL CHOUDBARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed by the petitioners Sheo Mangal Choudhary and Raj Mangal Choudhary for quashing the order dated 15-1-1990 passed by Shri R. N. Prasad, Executive Magistrate, Siwan in Case No. MNO. 1963 Tr. No. 767 of 1989 under S. 146(1) of the Code of Criminal Procedure (hereinafter referred to as 'the Code') attaching the disputed land and appointing receiver to take possession of the crops and deposit the amounts after selling the crops on open auction.

(2.) A proceeding under S.145 of the code had been started on the basis of a petition by the Ist party dated 26-9-1989 in which notices were issued to the parties to show cause. Ist party appeared, 2nd party did not appear. The service report dated 23-10-1989 was to the effect that on 22-10-1989, the process server went to the 2nd party who saw the notice but refuse to give receipt. The report of the process server Kapil Choubey is on the record. On 23-10-89 when the case was taken up, Ist party appeared but the 2nd party was not present. The Court fixed 8-11-1989, Ist party was present. On 1-1l-1989 the Ist. party filed an application saying that the 2nd party has come to know of the proceeding and so, he has become very aggressive and bloodshed was likely to be caused, that the 2nd party was trying to take forcibly the possession and so, there was threat by him to occupy the land and cut away the standing sager cane crop. On this application, the court called for a report from the Police. On 8-11-1989 the report of the police was not received. The Court then fixed 1-12-1989 when Ist. party was present and second party was not present and the report was not received. On 7-12-1989, was the same position and the case was transferred to the Court of learned Executive Magistrate where on 16-12-1989 nothing was done. On 22-12-1989 both parties appeared but the case was not taken up. On 29-12-1989, the case was not taken up as the Court was busy. On 3-1-1990, both the parties were absent. Then on 10-1-1990, Ist. party was present but second party was absent. The report of the police was received. The Ist. party was heard and the Court observed that 2nd party had appeared on 7-12-1989 and 22-12-1989 but for the last three dates, the 2nd party was not appearing and so, a last chance was being given to them fixing 15-1-1990 for argument. On 15-1-1990 the Court passed the impugned order saying that the Ist. party was present, 2nd party was absent and no show cause has been filed. Police Report was perused, situation was explosive as reported in the report and so, the disputed land was attached under S. 146(1) of the Code and crops were ordered to be sold. Shri Muktinath Mishra was appointed receiver. The 2nd party then filed an application on 27-1-1990 saying that when the receiver went to the spot, then they came to know about the order, and that the service report of the process server was collusive and so, the order may be recalled. On 16-2-1990 too, the Ist. party was present, 2nd party was absent, the Court rejected the said application saying that order has already been passed and in the situation, the impugned order cannot be reviewed by him.The 2nd party has filed this application for quashing the order dated 15-1-1990 and has not sought for quashing the order dated 16-2-1990.

(3.) The learned counsel for the petitioners has urged that the service report is collusive and they have never been served with the notice, that the order sheet showing the 2nd parties' appearance is also incorrect. So, without notice to them, the impugned order could not be passed under S. 146(1) of the Code. Further the order itself does not give out the reasons for passing the order and if there was any emergency, as according to law, the details should have been given out. The learned counsel for the petitioners has referred to several decisions which will be considered hereinafter.