LOK NATH SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 7.2.2006 passed in Case No.1478M of 2005, whereby the Sub Divisional Magistrate, Sadar, Motihari, converted the proceeding under Section 145 of the Code of Criminal Procedure from one initiated under Section 144 of the Code of Criminal Procedure, The Sub Divisional Judicial Magistrate attached the land in dispute and appointed the Circle Officer, Turkaulia, Motihari, as Receiver with a direction to both the parties to file their written statements.

(2.) The brief facts, which is not in dispute, is that the members of the first party/opposite party nos.5 to 7 filed an application under Section 12 of the Money Lender s Act against the members of the second party/petitioners and others before the court of Circle Officer. The application was allowed in favour of the opposite parties. The petitioners preferred appeal before the Deputy Collector Land Reforms, which was allowed. The opposite parties preferred revision against the appellate order before the Collector, Motihari, which was dismissed. Thereafter, the opposite parties filed C.W.J.C. No.11891 of 1992 before this Court. The Division Bench of this Court allowed the aforesaid writ petition vide order dated 18.1.1994 by quashing the appellate and revisional orders and remanded the case to the original court for disposal of the petition filed under Section 12 of the Bihar Money Lender s Act after giving an opportunity of hearing to all the parties as the appeal and revision were dismissed on the ground of territorial jurisdiction. Thereafter, on the petition of the opposite parties, Money Lender Case No.1 of 1987-88 was registered and Circle Officer, Turkaulia, dismissed the case on 30.12.1995. Against the said order, the opposite parties preferred Appeal No.69 of 1996 in court of the Deputy Collector Land Reforms, Sadar, Motihari, which was allowed vide order dated 13.11.1996. The petitioners preferred the revision bearing Case No.R.R.10/1996-97 under Section 45 of the Bihar Money Lender s Act before the Collector, East Champaran, Motihari, which was disposed of vide order dated 2.8.2000 with an observation that the complicated questions of right and title are involved in this case which cannot be decided by the revenue court. As such, the parties are directed to get their claim decided by competent civil court. The opposite parties filed C.W.J.C. No.9510 of 2000, which was dismissed on 28.9.2004. Thereafter the opposite parties filed L.P.A. No.1270 of 2004 and the same was dismissed on 7.1.2005. The opposite parties moved the Hon ble Apex Court vide Special Leave to Appeal (Civil) CC 5984 of 2004 and the same was dismissed on 13.7.2005. Thereafter, a proceeding under Section 144 of the Code of Criminal Procedure was initiated on 6.2.1997 bearing Case No.120M of 1997 (Subodh Sharma and others Vs. Manan Dewan and others) and the proceeding under Section 144 of the Code of Criminal Procedure was also initiated on 8.4.2000 bearing Case No.436M of 2000 (Manan Dewan Vs. Subodh Sharma) in the court of Sub Divisional Magistrate, Motihari. Later on, the proceeding under Section 145 of the Code of Criminal Procedure was initiated on 2.5.2000 bearing Case No.520M of 2000 (Manan Dewan and others Vs. Subodh Sharma and others) and the land in dispute was attached under Section 146 of the Code of Criminal Procedure. The petitioners filed the Criminal Revision No.74 of 1997, Criminal Revision No.147 of 2000 and the Criminal Revision No.182 of 2000 against the orders dated 6.2.1997, 8.4.2000 and 2.5.2000 respectively passed in Case Nos.120M of 1997, 436M of 2000 and 520 of 2000. The learned Additional Sessions Judge-I, East Champaran, Motihari, allowed all the aforesaid three Criminal Revisions vide order dated 2.6.2005. Thereafter, the Sub Divisional Magistrate, Sadar, Motihari, initiated a proceeding under Section 144 of the Code of Criminal Procedure bearing Case No.1478M of 2005 in which the opposite party nos.5 to 7 are the members of the first party and the petitioners are the members of the second party. After appearance of the second party/petitioners and filing show cause to drop the proceeding, the Sub Divisional Magistrate, Sadar, Motihari, converted the proceeding of Section 144 of the Code of Criminal Procedure into a proceeding under Section 145 of the Code of Criminal Procedure, attached the land in dispute and appointed the Circle Officer, Turkaulia, as receiver with a direction to both the parties to file their show cause vide order dated 7.2.2006, which is impugned in this application.

(3.) Learned counsel appearing on behalf of the petitioners made submission that the land in dispute measuring an area of 52 bighas is owned and possessed by the family members of the petitioners as purchasers from the raiyats through four sale deeds executed in the year 1962-63. The opposite party nos.5 to 7 and their other associates filed the petition under Section 12 of the Money Lender s Act against the petitioners and matter reached before this Hon ble High Court and the matter was remitted back to the revenue authority for reconsideration. The Circle Officer, Turkaulia, rejected the prayer of the opposite party nos.5 to 7 but in appeal the Deputy Collector Land Reforms allowed the appeal in favour of the opposite party nos.5 to 7. Against the appellate order, petitioners filed revision before the Collector, Motihari, who disposed of the revision, holding that the complicated questions of title are involved in the case, which can not be decided by the revenue court, with a direction to the parties to get their claim decided by competent civil court. The petitioners are in continuing possession. Earlier, the proceedings under Sections 144 and 145 of the Code of Criminal Procedure were initiated. The petitioners had preferred criminal revisions, which were decided in their favour by the order as contained in Annexure- 4 to this application. Therefore, this fresh initiation of proceeding under Section 145 of the Code of Criminal Procedure and attachment of the land in dispute is bad in law as well as on facts. In support of the aforesaid submission, learned counsel for the petitioners placed reliance on the decisions of the Hon ble Apex Court rendered in Kunjbihari Vs. Balram and another, 2007 1 SCC(Cri) 376} and Bharat Prasad and others Vs. State of Bihar and others, 2009 AIR(SC) 2827}.