SUBHASH CHAND JAIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) 1. The order dated 7 -11 -1994 passed by the Executive Magistrate, Arrah, in Misc. Case No. 112 of 1994 as contained in Annexure -1 and the order dated 4 -5 -1995 of the learned 2nd Addl. Sessions Judge, Arrah, in Cr. Revision No. 214 of 1994 have been sought to be quashed in this writ petition filed under Articles 226 and 227 of the Constitution of India.

(2.) Respondent No. 4 Rajeshwar Pd. filed a petition on 19 -10 -1994 before the S.D.O., Arrah, to pass necessary orders for getting the shop unlocked. According to the petitioner, the shop belongs to him as a tenant under the Trust property although the petitioner was not given any chance to state his case before the S.D.O. or the Executive Magistrate. The private -respondent's case is that his shop had been locked by the petitioner and it had created law and order problem and as such it should be unlocked to give the respondent No. 4 all facilities to run the business in the shop. The S.D.O. asked for a report from the police. Then the matter was placed before the Executive Magistrate on 28 -10 -1984. As the matter was within the seisin of S.D.O., the Executive Magistrate asked for placing the file before the S.D.O. But on 7 -11 -1994. Mr. Ajay Kumar Sinha, Executive Magistrate, on the basis of the police report asked for reopening of the lock. It is the contention of the petitioner that he is the tenant of the shop in question and the same cannot be made over to a private party without giving an opportunity of hearing to the petitioner in a legal proceeding. There is no scope of the S.D.O. or any Executive Magistrate to pass any order in a disputed matter without going on for an inquiry under Chapter X of the Code of Criminal Procedure. Against the order passed in unlawfully and it was unlocked ultimately by the police, a revision was preferred before the Sessions Judge and by a long order learned Sessions Judge came to the finding that the revision was not maintainable as the order passed by the Executive Magistrate is not under any provisions of the Code of Criminal Procedure.

(3.) On the face of the order passed by the Executive Magistrate and entertaining of the petition by respondent No. 4 seems to be an illegal one. An Executive Magistrate has got authority in such dispute to enter between the two private parties, if a proceeding is registered under Chapter -X of the Code of Criminal Procedure but no proceeding was drawn up and it appears that the Executive Magistrate entered into the dispute between the parties when he had got no authority to do so. Either in the Civil Court or in the Criminal Court had only such jurisdiction but the Executive Magistrate had taken law in his own hand. Moreover, no liberty was given to the petitioner to be heard when there was allegation that the petitioner had locked the shop as is revealed from the report of the police officer.