Har Narain Dutt Tiwari v. The State Of Bihar & Ors.

For the Petitioner/s : Mr. Maya Shankar Mishra, Advocate Mr. Nagendra Upadhyay, Advocate For the State of Bihar : Mr. Azay Kumar No. 1, Addl.P.P. For the Opposite Party No.2 : Mr. Arun Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 3 16-12-2013 A reply on behalf of the petitioner to the counter affidavit filed on behalf of the opposite party No.2 is being filed during the course of hearing of the case. Let it be kept on the record.

2. The petitioner has filed the present petition before this Court under Section 482 Cr.P.C. invoking its inherent powers for quashing the order dated 23.11.2011 passed in Cr. Revision No. 41 of 2011 by the learned Sessions Judge, Bhojpur, Ara, whereby the aforesaid Revision application filed on behalf of the opposite party No.2 has been allowed and order dated

15.12.2010 passed by the learned Sub-Divisional Magistrate, 2 Patna High Court Cr.Misc. No.6472 of 2012 (3) dt.16-12-2013 Sadar, Ara in case No. 5 of 2009 attaching the lands under dispute in terms of Section 146(1) Cr.P.C. and appointing the Anchal Adhikari, Koilwar as receiver, has been set aside, merely on the ground that T.S. No. 88 of 1999 between the parties is pending in the court of learned Munsif 3rd, Ara.

3. It is not under dispute that by an order dated

21.3.2009 a proceeding under Section 145 Cr.P.C. was initiated by the learned Sub-Divisional Magistrate, Sadar, Ara, giving rise to Case No.5 of 2009. In the aforesaid proceeding, lands bearing khata No. 403 appertaining to khesra No. 1290 areas 56 decimals, khata No. 2403, appertaining to khesra No. 2466 area 37 decimals, khata No. 66 appertaining to khesra No. 253, area 30 decimals, khesra No. 469 area 74 decimals, khesra No. 475 area 38 decimals, and khata No. 252 appertaining to khesra No. 520 area 40 decimals all situate at Mauja Dhandiha are subject matter of decision with respect to possession of the parties. It is also not under dispute that in view of situation of emergency, on the basis of a petition filed on behalf of the petitioner and in view of enquiry report submitted by the local police, as also after hearing both sides the lands under dispute were attached in exercise of powers under section 146(1) Cr.P.C. and the Anchal Adhikari, Koilwar, was appointed as receiver.

4. Opposite party No.2, being aggrieved by the aforesaid order, preferred Cr. Revision No. 41 of 2011, which was finally heard and allowed by the learned Sessions Judge, Bhojpur, Ara by the impugned revisional order dated 23.11.2011. By the impugned revisional order, the learned Sessions Judge, Bhojpur, Ara has set aside the impugned original order of attachment passed on 15.12.2010 by the learned Sub-Divisional Magistrate, 3 Patna High Court Cr.Misc. No.6472 of 2012 (3) dt.16-12-2013 Sadar, Ara, on the ground that T.S. No. 88 of 1999 between the parties is pending in the court of learned Munsif 3rd, Ara. Therefore, according to learned Sessions Judge, Bhojpur, Ara parallel proceeding under Section 145 Cr.P..C. or the order of attachment passed under section 146(1) Cr,.P.C. by the learned Sub-Divisional Magistrate, Sadar, Ara is not sustainable in eye of law. However, without setting aside the proceeding under section 145 Cr.P.C., the learned revisional court below has set aside only the order of attachment passed under Section 146(1) Cr.P.C.

5. Learned counsel appearing on behalf of the petitioner, by referring to the copy of plaint of T.S. No. 88 of 1999, which has been brought on record at Annexure-5 to the reply affidavit to the counter affidavit, submits that none of the plots, which are subject matter of consideration in the proceeding under Section 145 Cr.P.C., is subject matter of decision in the aforesaid T.S. No. 88 of 1999. According to him, since the lands under dispute are not the subject matter of decision in the pending T.S. No. 88 of 1999, therefore, the learned Sub-Divisional Magistrate, Sadar, Ara was fully justified in passing the impugned order of attachment of lands in view of situation of emergency. It is further submitted that the learned revisional court below has erred in law in reversing the order passed by the learned Sub- Divisional Magistrate, Sadar, Ara.

6. Learned counsel appearing on behalf of the opposite party No.2 has opposed the prayer and has supported the impugned order. However, he has fairly conceded that the plots, which are subject matter of decision in the impugned proceeding under Section 145 Cr.P.C. or which were attached under Section 146(1) Cr.P.C. are not the subject matter of decision in the 4 Patna High Court Cr.Misc. No.6472 of 2012 (3) dt.16-12-2013 pending T.S. No. 88 of 1999.

7. After having heard the parties and taking into consideration the materials available on the record, this Court is of the opinion that the learned Sessions Judge, Bhojpur, Ara has not applied his independent judicial mind to the facts of the case and without taking pains in examining the plaint of T.S. No. 88 of 1999 has mechanically passed the impugned revisional order, and has arbitrarily and illegally set aside the order of attachment passed on 15.12.2010 by the learned Sub-Divisional Magistrate, Sadar, Ara in Case No. 5 of 2009. Since the lands under dispute, which are subject matter of determination in the proceeding under Section 145 Cr.P.C. are not the subject matter of decision in the pending T. S. No. 88 of 1999, the learned Sub-Divisional Magistrate, Sadar, Ara was fully justified in attaching the lands under dispute in exercise of his powers under section 146(1) Cr.P.C. in view of situation of emergency.

8. For the reasons recorded above, the impugned revisional order dated 23.11.2011 passed in Cr. Revision No. 41 of 2011 by the learned Sessions Judge, Bhojpur, Ara, is hereby quashed and set aside, and order dated 15.12.2010 passed by learned Sub-Divisional Magistrate, Sadar, Ara in Case No. 5 of 2009 is hereby restored.

9. Now, the learned Sub-Divisional Magistrate, Sadar, Ara is hereby directed to dispose of the aforesaid proceeding under Section 145 Cr.P.C. pending between the parties at an earliest possible time, preferably within a period of nine months from the date of receipt/production of a copy of this order, but only after giving opportunity of hearing to both sides for producing their evidence/materials in support of their respective 5 Patna High Court Cr.Misc. No.6472 of 2012 (3) dt.16-12-2013 claims of possession over the lands under dispute.

10. It goes without saying that if there is no longer situation of emergency over the lands under dispute, then the aggrieved party shall be at liberty to approach the learned Sub- Divisional Magistrate, Sadar, Ara, for passing appropriate order in terms of Section 146 (1) proviso of the Cr.P.C.

11. The application stands allowed to the extent indicated above. Kanth/- (Birendra Prasad Verma, J)