VAKIL SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE second party to a proceeding under Section 144 Cr.P.C., being case No. 304 of 2005, has filed this application for setting aside the orders dated 6.5.2005 and 27.6.2005 passed therein by the learned Sub Divisional Judicial Magistrate, Mahua, whereby he has first converted the said proceeding into one under Section 145 Cr.P.C. and secondly, has attached the property under the provisions of Section 146(1) Cr.P.C. and has appointed a receiver. A prayer has also been made to quash the order dated 13.2.2007 passed by the learned Sessions Judge, Vaishali at Hajipur, in Criminal Revision No. 171 of 2005 whereby he has dismissed the revision preferred against order dated 6.5.2005.

(2.) IT appears that on the basis of a report received from the Police Inspector, Mahua, a proceeding under Section 144 Cr.P.C. was initiated by the Sub -Divisional Magistrate in respect of 7 acres 66 decimals of land spread over 25 plots of khata No. 106 in mauza Hakimpur within Mahua P.S. and both the parties were noticed. It further appears that whereas the first party appeared and filed its show cause along with supportive documents, the second party merely appeared but did not file any show cause or documents. It also appears that whereas the first party participated at the arguments, the second party curiously abstained therefrom. The learned Magistrate on consideration of the materials available on record and hearing the submissions of the first party formed an opinion that there was apprehended danger of breach of the peace between the parties over taking possession of the lands in question and accordingly converted the proceeding into one under Section 145 Cr.P.C. by order dated 6.5.2005. The said order was impugned in Cr. Rev. No. 171 of 2005 before the Sessions Judge which was dismissed by order dated 13.2.2007 on a finding that the learned Magistrate had recorded his satisfaction for converting the proceeding. He also noticed the disinclination of the second party to participate before the Magistrate and file his documents in support of his claim of the lands in dispute being joint family property and advance his submissions in that regard. It further appears that the matter of attachment was neither impugned nor assailed in the revision although the order thereof became available during the pendency of the revision.

(3.) I am unable to accept the submissions advanced by the learned Counsel in view of the decisions of Khedu Mahto v. Smt. Prem Sundari : 1976 PLJR 187 wherein it was held that non mention in the 145 order converting the proceeding as to the satisfaction of the Magistrate in respect of apprehension of the breach of peace does not vitiate the order. Even otherwise, the Magistrate in the said order has spelt out his satisfaction and I find no illegality therewith.