Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.39917 of 2013 ====================================================== Raj Mata Durgeshwari Sahi, W/O late Maharaj Bahadur Gopeshwar Prasad Sahi, R/O Village, Post and Police Station- Hathwa, District- Gopalganj .... .... Petitioner/s Versus 1. The State of Bihar 2. The Collector, Gopalganj 3. The Sub-Divisional Magistrate, Hathwa, District Gopalganj 4. The Circle Officer, Hathwa, District Gopalganj 5. Smt. Manju Prasad at present Sub-Divisioinal Magistrate, Hathwa, District Gopalganj
Legal Reasoning
6. Shri Ramesh Chandra Shrivastava at present Circle Officer, Hathwaa, District Gopalganj ====================================================== .... .... Opposite Party/s with Criminal Miscellaneous No.42961 of 2013 ====================================================== Maharaj Bahadur Mrigendra Pratap Sahi, S/O late Maharaj Bahadur Gopeshwer Prasad Sahi, R/O Village, Post and Police Station Hathwa, District- Gopalganj .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Collector, Gopalganj 3. The Sub-Divisional Magistrate Hathwa, District- Gopalganj 4. The Circle Office, Hathwa, District- Gopalganj 5. Smt. Manju Prasad at Present Sub-Divisional Magistrate, Hathwa, District- Gopalganj 6. Shri Ramesh Chandra Shrivastava at Present Circle Officer, Hathwa, District - Gopalganj 2 Patna High Court Cr.Misc. No.39917 of 2013 (3) dt.11-11-2013 2 / 5 ====================================================== .... .... Opposite Party/s Appearance : (In Cr.Misc. No.39917 of 2013) For the Petitioner/s : Mr. Kaushlendra Kumar Sinha, Advocate Mr. Rajendra Prasad, Advocate For the Opposite Party/s : Mr. Binay Kumar, A.C. to G.P. 13 (In Cr.Misc. No.42961 of 2013) For the Petitioner/s : Mr. Kaushlendra Kumar Sinha, Advocate Mr. Rajendra Prasad, Advocate For the Opposite Party/s : Mr. Bhaskar Shankar, A.C. to G.P. 16 ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 3 11-11-2013 In both the matters identical issues of facts and law are involved. Therefore, with the consent of the parties, both of them have been taken up and heard together, and are being
Decision
disposed of by this common order. 2. The petitioner of Cr. Misc. No. 39917 of 2013 happens to be the mother of the petitioner of Cr. Misc. No. 42961 of 2013. The petitioner of Cr. Misc. No. 39917 of 2013 is aggrieved by the order dated 12.11.2012 passed by the learned Sub-Divisional Magistrate, Hathwa in Case No. 1637 of 2012, whereby a proceeding under Section 144 Cr.P.C. was initiated with respect to the lands under dispute. She is further aggrieved by the order dated 12.1.2013, whereby the proceeding under section 144 Cr.P.C. was converted into a proceeding under Section 145 Cr.P.C., and the parties were directed to file their show cause and materials in support of their claims of possession over the lands under dispute. By the aforesaid order dated 12..01.2013 itself passed in case No. 1637 of 2012, the lands under dispute have 3 Patna High Court Cr.Misc. No.39917 of 2013 (3) dt.11-11-2013 3 / 5 been attached under Section 146(1) Cr.P.C. and the Officer-in- charge of Hathwa Police Station and the Anchal Adhikari, Hathwa have jointly been appointed as receivers. 3. Similarly, petitioner of Cr. Misc. No. 42961 of 2013 is aggrieved by the order dated 5.12.2012 passed in Case No. 1638 of 2012 by the learned Sub-Divisional Magistrate, Hathwa, whereby a proceeding under Section 144 Cr.P.C. has been started with respect to the lands under dispute. He is further aggrieved by the order dated 5.1.2013, whereby the proceeding under Section 144 Cr.P.C. has been converted into a proceeding under Section 145 Cr.P.C. and the parties have been directed to file their show cause as also the materials and documents in support of their claims of possession over the lands under dispute. However, by the same order the lands under dispute have been attached in exercise of powers under Section 146(1) Cr.P.C. and the Officer- in-charge of Hathwa Police Station and the Anchal Adhikari, Hathwa have jointly been appointed as receivers. 4. After having heard the parties, and on consideration of the materials available on the records, this Court is of the opinion that so far order initiating a proceeding under Section 144 Cr.P.C. is concerned, that has lost its force with the passage of time. The order initiating the proceeding under Section 145 Cr.P.C. for deciding the question of possession of the parties over the lands under dispute also cannot be legally faulted. However, the order passed under Section 146(1) Cr.P.C. for attaching the lands under dispute does not appear to have been passed in accordance with the mandate of law. In the order dated 12.1.2013 and 5.1.2013 passed separately in both the cases by the learned Sub-Divisional Magistrate, Hathwa, there is no finding or 4 Patna High Court Cr.Misc. No.39917 of 2013 (3) dt.11-11-2013 4 / 5 material to suggest that there was a situation of emergency. The learned Sub-Divisional Magistrate, Hathwa has also not recorded a finding of fact that none of the parties is in possession over the lands in question. If these findings have not been recorded, then in that case the learned Magistrate was not justified in attaching the lands under dispute under Section 146(1) Cr.P.C. and appointing the receivers, as indicated above, for up-keeping of the lands in question. 5. For the reasons recorded above, this Court declines to interfere with the order dated 12.11.2012 passed in Case No. 1637 of 2012 and the order dated 5.12.2012 passed in Case No. 1638 of 2012 by the learned Sub-Divisional Magistrate, Hathwa, whereby the proceedings under Section 144 Cr.P.C. were started with respect to the lands under dispute. This Court further declines to interfere with the orders dated 12.1.2013 and 5.1.2013 passed in aforesaid two cases respectively, so far the proceedings under Section 145 Cr.P.C. have been initiated for deciding the question of possession of the parties over the lands under dispute. However, this Court is inclined to interfere with the impugned orders dated 12.1.2013 and 5.1.2013 passed in foresaid two cases respectively, so far the lands under dispute have been attached under Section 146(1) Cr.P.C. by learned Sub-Divisional Magistrate, Hathwa. Both the orders passed under Section 146(1) Cr.P.C. are not in accordance with the mandate of law. Therefore, they cannot be sustained. 6. In the result, both the applications partly succeed. The orders initiating proceedings under Section 145 Cr.P.C. are affirmed. The parties shall file their show cause, if not already filed, and produce their evidence/materials in support of 5 Patna High Court Cr.Misc. No.39917 of 2013 (3) dt.11-11-2013 5 / 5 their respective claims of possession over the lands under dispute before the learned Sub-Divisional Magistrate, Hathwa, which shall be decided in accordance with law. However, both the orders, referred to above, whereby lands under dispute have been attached under Section 146(1) Cr.P.C. and receivers have been appointed are hereby quashed and set aside. 7. It goes without saying that if there is a situation of emergency or the learned Magistrate comes to a conclusion that neither party is in possession over the lands under dispute, then he shall be at liberty to pass a fresh order under Section 146(1) Cr.P.C., after giving opportunity of hearing to the petitioners and all concerned persons. 8. The petitioners are hereby directed to give all co-operations for early disposal of the proceeding under Section 145 Cr.P.C. They shall produce their evidence/materials on the date fixed by the learned Sub-Divisional Magistrate, Hathwa, whereafter the aforesaid proceedings shall be decided expeditiously strictly in accordance with law. 11. It goes without saying that the interim orders passed by a Bench of this Court in Cr. Misc. No. 39917 of 2013 and Cr. Misc. No. 42961 of 2013 on 7.10.2013 and 9.10.2013 respectively, have merged in the present order. Kanth/- (Birendra Prasad Verma, J)