LAWS(PAT)-1992-5-21

JHULANSINGH Vs. STATE OF BIHAR

Decided On May 18, 1992
JHULAN SINGH Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) On a police report a proceeding under Section 144, Cr. P. C. was initiated by Sub-divisional Officer Buxar on 11-7-1990 giving rise to Case No. 705 (M) of 1990 in respect of a portion of plot No. 1034 situated in village Raghunathpur, police station Brahmpur, District Bhojpur. After perusing the show cause and hearing the parties, the Sub-Divisional Officer passed a final order dated 3-9-1990 making the rule absolute against the second party i. e. the petitioner. On 15-9-1990, respondent No. 5 filed a petition before the Sub-Divisional Officer for a direction to Brahmpur police to give protection to him in making construction over the said land. Brahmpur police also prayed before the Sub-Divisional Officer on 18-9-1990 for deputation of a Magistrate so that the respondent No. 5 may complete his boundary wall with the police assistance. On 18-9-1990 itself petitioner filed a petition before the SubDivisional Officer praying for not to take any action before the decision in the Criminal Revision preferred by him against the order dated 3-9-1990. But on 5-11-1990 Sub-Divisional Officer deputed Block Development Officer as Magistrate to accompany the police to enforce order dated 3-9-1990. This application under Articles 226 and 227 of the Constitution of India has been preferred against such order dated 5-11-1990.

(2.) The learned counsel for the petitioner has submitted that the order dated 5-11-1990 is without jurisdiction as no proceeding under Seption 144, Cr. P. C. was pending on such date. It had already spent its force on 11-9-1990.

(3.) On the other hand, the learned counsel for the respondent Nos. 5 and 6 has submitted that the Sub-Divisional Officer being incharge of maintaining law and order has administrative authority to depute Magistrate and police force to prevent breach of peace. His such order is an administrative order and this criminal writ is not maintainable. The petitioner has got an alternative remedy under Section 144 (5), Cr. P. C.