RAJIV BHARTI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Can the High Court in the exercise of its inherent powers under the Code of Criminal Procedure order the restitution of possession to the petitioner while setting aside a wholly arbitrary order of the Magistrate dispossessing him under the garb of an order under S.144 of the said Code - is the significant question herein. This reference to the larger Bench has apparently been necessitated by veiled doubts about some discordance of precedent within this Court on the issue aforesaid.

(2.) The question aforesaid stems from a dispute betwixt the petitioner Rajiv Bharti @ Anil Kumar Sharma and the opposite party over the possession of the first floor of the shop claimed to be in the occupation of the petitioner. It has been averred that the ground-floor of the premises has already been in his occupation for carrying on his business in partnership with one Satyanarain Singh and he had constructed the disputed room on the first floor for storing the goods of his business therein. The case set up by the opposite party was that the petitioner had inducted the aforesaid Satyanarain Singh as a tenant in the ground-floor and was forcibly trying to occupy the first-floor illegally. It is, however, common ground that the opposite party had filed Title Suit No.39 of 1983 for the eviction of the petitioner from the ground-floor itself in which after evidence arguments had been heard but final order had not yet been passed.

(3.) It would appear that on the criminal side also on the basis of a police report a proceeding under S.144, Criminal P.C. (hereinafter referred to as "the Code") had been initiated betwixt the parties. In the aforesaid proceeding the parties had filed their respective show cause and placed documents on the record. Arguments therein also were heard on their behalf but no final order could be passed by the Magistrate till the date fixed for passing orders, (that is, 17th May, 1983) and the proceeding died a natural death due to the expiry of the period of 60 days by then. However, on the 25th May, 1983, the opposite party filed an application under S.452 of the Code before the Magistrate in the aforesaid lapsed proceeding seeking a direction to the officer-in-charge to hand over the key of the disputed property to them and to have the same broken open. On the aforesaid application, the Magistrate is alleged to have proceeded forthwith to pass the impugned order dt. 7th June, 1983, without any notice to the petitioner and entirely behind his back. Therein even after noticing the pendency of the civil proceedings betwixt the parties, it was directed peremptorily as follows :