KISUN YADAV Vs. ASHARFI YADAV

JUDGEMENT

(1.) This application under Sections 397 and 401 of the Code of Criminal Procedure, 1 973 (in short 'the Code') is directed against the order dated 17-2-1986 passed by the learned Sub-divisional Magistrate, Begusarai in Case No. 1967M/85 in a proceeding under Section 145 of the Code by which the learned Magistrate started a proceeding under Section 144 of the Code, converted the same under Section 145 of the Code and also passed an order for the plucking of the standing chilli crops from the disputed land in presence of the Circle Officer who was appointed as a receiver.

(2.) It appears that a proceeding under Section 144 of the Code was started by the learned Magistrate on 8-1-1986. Show cause notices were issued on the parties. In compliance of this order the parties appeared before the learned Sub-divisional Magistrate and prayed for time to file the show cause. Before however any show cause could be filed, on 30-1-1986 the first party (the present Opposite Party No. 1) had filed a petition before the court praying that the chilli crop on the land in dispute may be ordered to be plucked by any appropriate officer. On this a report was called for from the Circle Officer.

(3.) On 17-2-1986 the matter was heard by the learned Sub-divisional Magistrate who without waiting for the show cause of the parties or without appointing the receiver as prayed for by the first party illegally converted the said proceeding into one under Section 145 of the Code and by the same order simultaneously issued the notice under Section 146 of the Code. It has been contended that the procedure followed by the learned Magistrate was illegal since the proceeding under Section 144 of the Code could not be converted into one under Section 145 of the Code without waiting for the filing of the show cause of the parties. Also the learned Magistrate had passed an illegal order of attachment under Section 146 of the Code simultaneously with the order initiating the proceeding under Section 145 of the Code. It is not permissible in law. It has further been contended that the impugned order is not in accordance with the provisions of the Code inasmuch as while initiating the proceeding under Section 145 of the Code the learned Magistrate had not stated the grounds of satisfaction nor she had required the parties concerned in dispute to attend the court and to file their written statements. The learned Subdivisional Magistrate wrongly assumed the jurisdiction in the garb of emergency to pass an order under Section 146 of the Code. Such a mixed order under the provisions of Sections 144, 145 and 146 of the Code is not permissible in law. On these grounds, it has been contended that the impugned order dated 17-2-1986 passed by the learned Subdivisional Magistrate be quashed.