Jharkhand High Court
Smt Harbhajan Kaur vs The State Of Jharkhand And Anr on 22 January, 2016
Author: R. Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2183 of 2015
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Smt. Harbhajan Kaur, wife of Late Harbinder Singh, Resident of - Q.
No. 100, Manifit, Road No. 4, P.O. and P.S. - TELCO, Jamshedpur,
District - Singhbhum East ... ... Petitioner
Versus
1. The State of Jharkhand
2. Bhupendra Singh, son of Sri Karam Singh, Resident of - 99, Manifit,
Line No. 4, P.O. and P.S. - TELCO, Jamshedpur, District - Singhbhum
East ... ... Opp. Parties
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Ayush Aditya, Advocate
For the O.P. No. 2 : Mr. Ananda Sen, Advocate
For the State : A.P.P.
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C.A.V. On 22/01/2016 Pronounced on 22/01/2016
In this application the petitioner has prayed for quashing the
order dated 16.10.2015 passed by the learned Sub Divisional Officer,
Dalbhum, Jamshedpur in Misc. Case No. 259 of 2015 whereby and
whereunder the petitioner was directed to close down his shop and
deposit the keys in the court of Sub Divisional Officer.
2. A proceeding was initiated under Section 144 Cr.P.C. at
the instance of the opposite party No. 2 which was registered as Mis.
Case No. 259 of 2015 and vide order dated 22.09.2015 an enquiry report
was called for from the concerned police station by the Sub Divisional
Officer.
3. On 16.05.2015 an order was passed under Section 144 Cr.P.C.
restraining both the parties. However, since the Sub Divisional Officer
was of the opinion that the dispute between the parties could not be
settled in the proceeding under Section 144 Cr.P.C. vide order dated
14.07.2015the proceeding was converted into one under Section 145 Cr.P.C. and 22.09.2015 was the next date fixed. On 18.09.2015 on an application filed by the opposite party no. 2 a direction was given by the Sub Divisional Officer to the Officer In-charge of the concerned police station to put lock on the shop premises in question. The Sub Divisional Officer vide order dated 16.10.2015 which is impugned in the present application directed that till the matter is finally decided -2- the shop in question should be closed and the keys of the shop be deposited in the court of Sub Divisional Officer.
4. The order dated 16.10.2015 has been put under challenge in the present application and upon hearing the matter, an order was passed on 04.11.2015 by this Court issuing notice upon the opposite party No. 2 and till the appearance of the opposite party No. 2 operation of the order dated 16.10.2015 was directed to be kept in abeyance. The petitioner had filed an interlocutory application being I.A. No. 6674 of 2015 since the Sub Divisional Officer, Dalbhum had violated the interim order earlier granted on 04.11.2015 and ultimately I.A. No. 6674 of 2015 was allowed and the order dated 16.10.2015 and 27.11.2015 passed by the Sub Divisional Officer, Dalbhum was directed to be kept in abeyance till further orders.
5. Heard Mr. Ayush Aditya, learned counsel appearing for the petitioner and Mr. Ananda Sen, learned counsel appearing for the opposite party no. 2.
6. Learned counsel appearing for the petitioner has submitted that the order dated 16.10.2015 passed by Sub Divisional Officer, Dalbhum is not in accordance with law and the same should be quashed. It has been submitted that the Sub Divisional Officer does not have the authority either under Section 144 Cr.P.C. or under Section 145 Cr.P.C. to pass an order of temporary injunction as has been done which is apparent from a perusal of the impugned order. Learned counsel for the petitioner has referred to Section 145 (4) of the Code of Criminal Procedure and has submitted that no finding has been given by the Sub Divisional Officer with respect to the dispossession of the opposite party no. 2 within a period of two months. Learned counsel has, therefore, submitted that the impugned order is bereft of any reasonings and is contrary to the provisions under Section 144 Cr.P.C. and 145 Cr.P.C.
7. Mr. Ananda Sen, learned counsel appearing for the opposite party no. 2 has submitted that the property in dispute belongs to the Railways and the husband of the petitioner was in unauthorized possession of the said plot and ultimately after due consideration the -3- plot was allotted and regularized in favour of the opposite party no. 2 vide order dated 10.10.1997. It has been submitted that a licence was also granted to the opposite party no. 2 on 23.03.1983 and rent has also been paid up to 31.03.2016. Learned counsel submits that in the year 2012-13 the shop was given for six months to the husband of the petitioner which was subsequently vacated and handed over to the opposite party no. 2 as the husband of the petitioner had already taken a shop for himself in the said area. It has also been submitted that Section 146 (1) gives the powers to the authority to close the shop and while exercising his powers under Section 146 (1) the Sub Divisional Officer had rightly passed the order impugned. Learned counsel further submits that Section 145 Cr.P.C. and 146 Cr.P.C. has to be read conjointly and, thereafter, it can be deciphered that the order dated 16.10.2015 was passed in accordance with law.
8. The entire dispute stems from the shop which has created breach of peace leading to starting a proceeding under Section 144 Cr.P.C. and restraining both the parties. The proceeding under Section 144 Cr.P.C. was subsequently converted to a proceeding under Section 145 Cr.P.C. in order to consider the possession of either of the parties with respect to the shop in question. For considering the rival contention, it would be necessary to refer to Section 145 and 146 of the Code of Criminal Procedure.
9. Section 145 deals with procedure where dispute concerning land or water is likely to cause breach of peace and Sub- section (4) deals with declaration of possession of either of the parties of the subject of the dispute and if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1) of Section 145 he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).
10. Section 146 of the Code of Criminal Procedure deals with the powers to attach subject of dispute and to appoint receiver and the -4- same being an important provision attacking the core of the dispute is reproduced hereinunder:-
"146. Power to attach subject of dispute and to appoint receiver. - (1) If the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908):
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate-
(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential orders as may be just."
11. A bare reading of Section 145(4) Cr.P.C. would suggest that the same relates to possession with respect to the subject matter of the dispute and the proviso of sub-section (4) of Section 145 gives the powers to the Magistrate to treat him to be in possession on the date of the order if he has been dispossessed within a period of of two months as indicated in the proviso.
12. Nothing has been brought on record so as to make the case of the petitioner come within the ambit of Section 145(4). On the other hand, sub-section (1) of Section 146 delineates the conditions with respect to the attachment of the subject in dispute until a -5- competent court has determined the right of the parties with regard to the entitlement of the possession thereof. The conditions for passing an order under Section 146 (1) of the Cr.P.C. are -
(a) if the Magistrate considers the case is one of the emergency,
(b) if he decides that information by the party was then in such possession,
(c) if he unable to satisfy himself as to which of them was then in such possession of the subject of such dispute.
13. Learned counsel for the petitioner has referred to the case of Agnu Ram Mahli vs. Bhola Manjhi & Others reported in [2001 (2) Jhr CR 238 (Jhr)] to substantiate his contention that in a proceeding under Section 145 Cr.P.C. the Magistrate is to be confined as regards possession of either parties in support of the land in question. The Code itself gives power to the Magistrate to declare the possession with respect to the disputed property in question but the same does not preclude the authority to exercise its powers under Section 146(1) of the Cr.P.C.
14. The impugned order dated 16.10.2015 clearly reveals that the Sub Divisional Officer, Dalbhum while passing the order had applied his mind and have given sufficient reasonings in support of his ultimate decision of closing the shop and depositing the keys in the court. It would, therefore, transpire that the Sub Divisional Officer, Dalbhum had exercised his jurisdiction in the proceeding under Section 145 Cr.P.C. by taking resort to the provisions of Section 146(1) of the Code of Criminal Procedure as would appear to have been indicated in the said order.
15. Accordingly, there being no reason to interfere with the order dated 16.10.2015 passed by the Sub Divisional Officer, Dalbhum, Jamshedpur in Misc. Case No. 259 of 2015, this application is dismissed.
16. However, it is directed that the proceedings under Section 145 Cr.P.C. be concluded expeditiously.
(R. Mukhopadhyay, J.) Umesh/-