Madhya Pradesh High Court
Ismile Khan vs State Of M.P on 5 October, 2015
1
M.Cr.C. No.303/2014
(Isimle Khan Vs. State of M.P. & Others)
10.07.2015
Shri Deepak Khot, Advocate for the petitioner.
Shri R.P. Gupta, Public Prosecutor for the
respondent/State.
Shri R.K. Upadhyay, Advocate for the respondent no.2/complainant.
Matter is heard and reserved for orders.
(Sheel Nagu)
sh/- Judge
2
M.Cr.C. No.303/2014
(Ismile Khan Vs. State of M.P. & Others)
05.10.2015
Shri Deepak Khot, Advocate for the petitioner. Shri R.P. Gupta, Public Prosecutor for the respondent/State.
Shri R.K. Upadhyay, Advocate for the respondent no.2/ complainant.
1. This petition under Section 482 Cr.P.C. assails the proceedings initiated u/S 145/146 Cr.P.C. which led to issuance of the impugned order dated 30.12.2013 by the Sub Divisional Magistrate, Shivpuri prima-facie finding, existence of breach of peace in regard to dispute between the petitioner and the respondent no.2 for possession of the shop in question and appointing, the Chief Municipal Officer of Municipal Council as a Receiver, Shivpuri, as an interim measure. The challenge is also made to the subsequent order of interim nature passed on 03.01.2014 in a criminal revision before the lower revisional Court by which while entertaining the said revision against the aforesaid order dated 30.12.2013, the operation and effect of the said order has been stayed.
2. This Court while entertaining this Section 482 petition 3 M.Cr.C. No.303/2014 against interim order dated on 28.01.2014 restrained the authorities from taking any coercive steps in the matter, as a result of which, it is informed that no further proceedings have taken place.
3. Learned counsel for the rival parties are heard on the question of admission.
4. The basic order passed on 30.12.2013 by the Sub Divisional Magistrate is by way of invoking his powers u/S 145 of Cr.P.C.
i) On a complaint filed by the Police Station, Kotwali, a preliminary inquiry was held by the SDM, Shivpuri by issuance of notice to the rival parties and calling for requisite report from the concerned officials in regard to the possession of a shop which was the subject matter of dispute between petitioner and the respondent no.2 to give rise to a cause for likely breach of peace.
ii) On obtaining necessary inputs from the requisite authorities and hearing the petitioner as well as the respondent no.2, a detailed order on 30.12.2013 was passed recording a prima-facie satisfaction that cause for likely breach of peace exists in regard to the said shop.
iii) Invoking the powers u/S 146 Cr.P.C., the shop in 4 M.Cr.C. No.303/2014 question was attached and the CMO, Municipal Council, Shivpuri was appointed as receiver subject to any order passed in future by the Civil Court.
iv) The receiver was directed to prepare an inventory of things available in the said shop with a further direction to ascertain that who is the true owner of the said shop in question.
v) This order dated 30.12.2013 was assailed in criminal revision before the Court of Sessions at Shivpuri, where the operation of this order was stayed on 03.01.2014 as an interim measure.
vi) During the pendency of the said criminal revision, the present petition u/S 482 Cr.P.C. has been filed in which while taking cognizance, this Court has restrained the authorities from taking any coercive action on 28.01.2014.
The interim order continues to subsist till date.
5. From the perusal of the basic order passed by the SDM, Shivpuri on 30.12.2013 regarding his satisfaction as to existing of cause of likely breach of peace in regard to shop in question, it appears that the SDM has afforded due and sufficient opportunity to both the parties i.e. petitioner as well 5 M.Cr.C. No.303/2014 as respondent no.2 and has recorded a reasonable finding based on the material placed before him, which included the report from the police authorities having jurisdiction over the shop in question. The satisfaction arrived at by the SDM, Shivpuri u/S 145 Cr.P.C. and the directions for appointment of receiver u/S 146 Cr.P.C. is based on relevant material placed on record and after following the principles of natural justices.
6. The prima-facie satisfaction of the SDM as regards existence of likely breach of peace in regard to the shop concerned has been objectably arrived at based on relevant considerations which cannot be termed as perverse or illegal or unlawful or against the basic principles of law.
7. Thereafter, the said order dated 30.12.2013 has also been put to test before the revisional Court and as per the information given, the said Court has yet to take a final decision.
8. This Court while invoking its inherent powers u/S 482 Cr.P.C. cannot re-assess the material which has been found sufficient by the SDM to arrive at a reasonable finding u/S 145/146 Cr.P.C., unless a cause of grave injustice is demonstrated or it is shown that if the inherent power is not exercised, then failure of justice would occasion.
6 M.Cr.C. No.303/20149. In the instant case, the impugned order of the SDO or the one passed by the revisional Court cannot be found fault with. The power exercised by the SDM is well within the four corners of law prescribed u/S 145/146 Cr.P.C. In view of the above, no case to exercise the inherent powers u/S 482 Cr.P.C is made out.
10. Accordingly, this petition u/S 482 Cr.P.C stands dismissed.
(Sheel Nagu)
sh/- Judge