Chandradeo Yadav v. The State of Bihar

For the Petitioner/s : Mr. Jitendra Prasad Singh, Advocate For the State of Bihar : Mr. Matloob Rab, Addl.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 5 31-01-2013 Heard learned counsel appearing on behalf of the petitioners and learned Additional Public Prosecutor appearing on behalf of the State of Bihar. However, despite issuance of notice to opposite party no.2 by an order dated 2.2.2012, and though opposite party no.2 has entered appearance through his lawyers, yet none is present on his behalf to oppose the prayer made in the present application. The petitioners have filed the present application under Section 482 of the Code of Criminal Procedure, 1973 ( for short ‘Cr.P.C.’) invoking inherent powers of this Court for 2 Patna High Court Cr.Misc. No.25945 of 2011 (5) dt.31-01-2013 quashing the order dated 10.12.2010 passed in case No.1611 of 2008 by the learned Sub-Divisional Magistrate, Aurangabad, whereby he has affirmed his previous order dated 27.2.2009 passed in purported exercise of his powers under Section 146(1) Cr.P.C. attaching the lands in dispute in the aforesaid proceeding under Section 145 Cr.P.C. pending between the parties. It appears that with respect to the lands of Khata No. 28, area 9.6 acres of lands of different plots, situate at village Bhatwa Bhagali, P.S. Nabi Nagar, District Aurangabad, (referred to as ‘the lands’), originally a proceeding under Section 144 Cr.P.C. was initiated by the learned Sub-Divisional Magistrate, Aurangabad. Subsequently, by an order dated 23.9.2008, a proceeding under Section 145 Cr.P.C. was initiated with respect to the lands in dispute giving rise to case No.1611 of 2008. The petitioners are the members of second party in the aforesaid proceeding under Section 145 Cr.P.C. whereas opposite party no.2 is the first party in the said proceeding. In the aforesaid proceeding under Section 145 Cr.P.C., in compliance of the order passed by the learned Sub-Divisional Magistrate, both parties are said to have filed their written statements and the matter is still pending for final adjudication. However, on the basis of a petition filed on behalf of the opposite party no.2, in purported exercise of his powers under Section 146(1) Cr.P.C. the learned Magistrate attached the lands in dispute by his order dated 27.2.2009. The petitioners, being aggrieved by the aforesaid order dated 27.2.2009 ( Annexure-3) passed by the learned Sub- Divisional Magistrate, Aurangabad, moved before this Court in Cr. Revision No. 645 of 2009, which was finally disposed of by an order dated 4.5.2009 by a Bench of this Court with a liberty to the 3 Patna High Court Cr.Misc. No.25945 of 2011 (5) dt.31-01-2013 petitioners to file a petition in terms of Section 146 (1) proviso of the Cr.P.C. before the learned Magistrate for withdrawal of the order of attachment. The order dated 4.5.2009 passed in the aforesaid Cr. Revision No. 645 of 2009 by a Bench of this Court has been brought on record as Annexure-4 to the present petition. Learned counsel appearing on behalf of petitioners submits that in compliance of the aforesaid order dated

4.5.2009, the petitioners filed a petition before the learned Sub- Divisional Magistrate, Aurangabad for recall of the order of attachment, but the same has been mechanically rejected by the impugned order dated 10.12.2010. He submits that by the impugned order dated 10.12.2010 the learned Magistrate has not only mechanically rejected the prayer made on behalf of the petitioner, but in a most arbitrary manner he has cancelled/revoked the written statement filed on behalf the petitioners in the aforesaid proceeding under Section 145 Cr.P.C. It is also contended that for passing an order of attachment under Section 146 (1) Cr.P.C., the learned Magistrate was required to record a finding of fact that there was a case of emergency and that he was not in a position to decide as to which party was in possession over the lands in dispute at that time. It is pleaded that only after recording such findings, the order of attachment could have been passed by the learned Magistrate. According to the learned counsel, requirement of Section 146 (1) Cr.P.C. has not been complied with, yet the learned Magistrate has affirmed his previous order of attachment of the lands in dispute. Learned Additional Public Prosecutor appearing on behalf of the State of Bihar has fairly conceded that the order impugned cannot be sustained in the eye of law. As noted earlier, 4 Patna High Court Cr.Misc. No.25945 of 2011 (5) dt.31-01-2013 none is appearing on behalf of the opposite party no.2 to oppose this petition. For the reasons recorded above, the impugned order dated 10.12.2010, as also the original order dated 27.2.2009 passed by the learned Sub-Divisional Magistrate, Aurangabad in case No. 1611 of 2008 are hereby set aside. However, if there is fresh situation of emergency, then the learned Magistrate shall be at liberty to pass a fresh order of attachment of the lands in dispute strictly in accordance with law after complying the mandate of Section 146 (1) Cr.P.C. The proceeding under section 145 Cr.P.C. pending between the parties appears to be very old. The proceeding was initiated as far back as in the year 2008. The learned Magistrate is hereby directed to expedite the proceeding and he shall make all endeavours to conclude the proceeding under Section 145 Cr.P.C. within a maxim period of nine months from the date of receipt/ production of a copy of this order. However, before doing that, the learned Magistrate shall be obliged to give reasonable opportunity to all the parties for producing their evidence/materials in support of their respective cases. The application stands allowed with the observations and directions made above. Kanth/- (Birendra Prasad Verma, J)