MOHAN LAL KUER Vs. STATE OF BIHAR

JUDGEMENT

(1.) This criminal Misc. application under Section 482, Cr.P.C. has been filed for quashing the order dated 24-8-90 passed by the Executive Magistrate Naugachia in Misc. Case No. 464/89 whereby he dropped the proceeding under Section 145, Cr. P.C. and also for quashing the consequential order passed in criminal revision bearing No. 312/90 whereby Addl. Sessions Judge, Naugachia confirmed the aforesaid order of the Executive Magistrate.

(2.) The brief facts leading to this application are as follows :-An application was filed by the petitioner, Mohan Lal Kuer before SDM Naugachia to the effect that there was an apprehension of breach of the peace with respect to the possession over the land appertaining to khata No. 1026 old, 2988 new of Khasra No. 4393 old, 5859 new area 0.08 acres. Accordingly, on 1-7-89, a proceeding under Section 144, Cr. P.C. was initiated and it was registered as Misc. Case No. 362M/89 and in the said proceeding Chandra Shekhar Kuer (opposite party No. 3) was member of the second party. Both the parties were restrained over the land in question. However, on 20-6-89 Officer Incharge, Gopalpur police station submitted a report before SDM Naugachia for initiation of a proceeding under Section 188, IPC stating that Chandra Shekhar Kuer (opposite party No. 3) violated the above order passed under Section 144, Cr. P.C. and had gone over the land in dispute with deadly weapon along with some other persons. On 12-9-89 SDM, Naugachia dropped the aforesaid case No. 362M/89 under Section 144, Cr. P.C. observing inter alia therein that a title suit No. 205/71 is pending in the Court of Addl. Sub Judge, Naugachia in which the first party and the vendor Shyam Tara Devi and others are defendants but in the said order it had been observed that there was apprehension of breach of the peace and as such a proceeding under Section 107, Cr. P.C. should have been initiated to maintain peace and tranquillity. Petitioner-first party filed an application before the Executive Magistrate, Naugachia for initiation of the proceeding under Section 145, Cr. P.C. against Smt. Godavari Devi. Both the parties were directed to appear and file show cause. After hearing both the parties Sri. R. M. Ram, Executive Magistrate, Naugachia was satisfied that there was an apprehension of breach of peace with regard to the land in question and hence he initiated proceeding under Section 144, Cr. P.C., and ordered for issuance of notice to the parties and on 5-12-89, the member of first party filed an application before the Executive Magistrate, Naugachia to attach the disputed land under Section 146, Cr. P.C. A report was called for from the Officer Incharge of Gopalpur police station, who submitted his report on 12-12-89 before SDM, Naugachia stating inter alia that first party was claiming to be in possession over the land in question as his grandfather had purchased the land in dispute as such Shyam Tara Devi had no right, title and interest over the land in question and as such she has illegally sold the land in favour of Smt. Godavari Devi (opposite party No. 2). A proceeding had also been initiated under Section 144, Cr. P.C. as the members of second party wanted to build a hut on the land. Both the parties were restrained but the member of the second party disobeyed the prohibitory order passed under Section 144, Cr. P.C., and thus, report has been submitted for initiation of proceeding under Section 188, IPC against them. On 14-12-89 on consideration of the report (annexure-3) and also considering the situation and to prevent the bloodshed, SDM, Naugachia attached the land in question under Section 146, Cr. P.C.and further Officer Incharge of Gopalpur Police Station was also directed to take steps to maintain law and order. The member of the first party-petitioner filed a written statement stating his case before the Court. However, member of the second party did not file any written statement. On 23-3-90 the members of the second party filed an application in the Court of SDM, Naugachia stating therein that title Suit No. 205/71 relates to the share of Shyam Tara Devi, his vendor who is defendant 2nd party in the said suit. The revisional survey records of right stands in the name of said Shyam Tara Devi and the sale deed executed by her in favour of members of the 2nd party will be presumed an unimpeachable document and no negative inference can be drawn against the said documents. In the meantime, proceeding under Section 144, Cr. P.C. was converted into a proceeding under Section 145, Cr. P.C. The matter was heard by Sri. B. Mehta, Executive Magistrate, Naugachia and he came to the conclusion that there was apprehension of breach of peace but he observed in his order dated 24-8-90 in Misc. Case No. 464/89 while dropping the proceeding under Section 145, Cr. P.C. stating that there cannot be a parallel proceeding of a civil suit and a criminal proceeding. The petitioner being aggrieved and dissatisfied with the said order preferred a criminal revision before the Court of Sessions Judge, Bhagalpur which was numbered as Cr. Revision No. 312/90. The said criminal revision was transferred to the Court of 7th Addl. Sessions Judge, Bhagalpur and ultimately, the same was heard by Sri A. Kumar, Addl. Sessions Judge, Naugachia who by order dated 7-9-92 dismissed the revision application and confirmed the order of the Executive Magistrate.

(3.) The petitioner further contended that during the pendency of the said revision application before Addl. Sessions Judge, Naugachia another proceeding under Section 144, Cr. P.C. was once again initiated which was numbered as case No. 38M/92 and both the parties were noticed to file show cause. Parties filed show cause and the SDO Naugachia once again dropped the proceeding on 23-8-92 on the same ground of pendency of title suit. It is further stated that Shyam Tara Devi, defendant No. 6 along with defendant Nos. 7 to 9 filed written statement in title suit No. 205/71, stating therein inter alia that those defendants are entitled to 8 annas share in all joint family property but defendant 1st party are interfering with and putting obstruction in peaceful enjoyment of the defendant on the lands given to them by way of temporary provisional family arrangement in the year 1952, also. In the said written statement, a list of lands was annexed as per her statement made in the written statement but the disputed land measuring 0.08 acres appertaining to khata No. 2988 (new) 1026 (old) kheshra No. 5859 (new) 4393 (old) does not find place in the said list. Thus defendant No. 6 was not entitled to transfer any land by executing a sale deed in favour of the members of the 2nd party during the pendency of title suit No. 205/71. There was also a dispute in the aforesaid title suit regarding appointment of receiver. It is further stated that 2nd party is not party in title suit No. 205/71. In that view, the order passed by the SDM, Naugachia or Addl. Sessions Judge, Naugachia are illegal, arbitrary and contrary to principle of law and deserves to be set aside. Accordingly, petitioner has prayed that the impugned order passed by the Executive Magistrate, Naugachia in Misc. case No. 464/89 and is affirmed by the Addl. Sessions Judge, Naugachia in Cr. Revision No. 312/90 deserve to be set aside.