Arvind Singh & Anr vs The State Of Bihar & Ors on 11 January, 2019

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Patna High Court - Orders

Arvind Singh & Anr vs The State Of Bihar & Ors on 11 January, 2019

Bench: Aditya Kumar Trivedi

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                    Criminal Miscellaneous No.5047 of 2017
                           Arising Out of PS. Case No.- Year- Thana- District- Bhabhua (Kaimur)
                 ======================================================
           1.    Arvind Singh, S/o Late Munna Singh,
           2.    Sushila Kunwar, W/o Late Munna Singh, Both resident of village - Darauli,
                 P.S. Durgawati, District - Kaimur, Bhabhua              ... ... Petitioner/s
                                                     Versus
           1.    The State of Bihar
           2.    Buchun Singh, S/o Late Sarju Singh,
           3.    Fula Kunwar, W/o Late Siri Singh, Both resident of village - Darauli, P.S.
                 Durgawati, District - Kaimur, Bhabhua           ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :        Mr.Sujeet Kumar, Adv
                 For the Opposite Party/s :        Mr. Parmeshwar Mehta, APP
                 For the Opposite Party No.2,      Mr. Sujit Kumar, Ravi. S. Sahay, C.M. Jha, Advs
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
                                       ORAL ORDER

3   11-01-2019

Heard learned counsel for the petitioners, learned APP along with learned counsel for OP Nos. 2 and 3.

2. On a petition filed by OP No.2 and 3 a police report was called for and being satisfied therewith a proceeding under Section 144 CrPC was initiated relating to Plot No. 301 area 0.33 decimal with specific boundary so disclosed, survey plot no. 303 area 0.50 decimal, survey plot no. 338 area 0.52, survey plot no. 340 area 0.52, survey plot no. 538 area 0.75, survey plot no. 543 area 0.31, survey plot no. 545 area 0.13, survey plot no. 631 area 0.56, survey plot no. 640 area 0.41, survey plot no. 822 area 0.60, survey plot no. 567 area 0.32, survey plot no. 568 area 0.44, survey plot no. 572 area 0.45 lying at village-Darauli wherein after appearance of the party as well as show-cause at their behalf vide order dated 18.02.2016 proceeding was allowed to be converted under Section 145 CrPC against which, Cr. Revision No. 100/2016 was filed Patna High Court Cr.Misc. No.5047 of 2017(3) dt.11-01-2019 2/4 before Sessions Judge, Kaimur at Bhabua at the behest of OP/2nd Party/petitioner and vide order dated 25.11.2016 the same has been dismissed whereupon the instant petition has been filed.

3. Heard the parties and gone through the records.

4. This petition has been listed for order 'on petition' but, considering the nature of the dispute, is finally disposed of.

5. There happens to be no specific provision under CrPC for conversion of proceeding under Section 144 CrPC to 145 CrPC but, by catena of decisions it has been settled that conversion is admissible, however, the ingredients so prescribed under Sub-Section 1 of Section 145 CrPC is to be perceived by the learned competent court during course of conversion.

6. When the order dated 18.02.2016 has been gone through, it is evident that learned Executive Magistrate while converting the proceedings had not formed an opinion with regard to apprehension of breach of peace relating to possession rather whatever been observed:-

"lacaf/kr fo}ku vf/koDrk ds dFku dks lquus izkUr dkj.ki`PNk o okn vfHkys[k ds v/;uksijkar ;g Li"V tkfgj gksrk gS fd orZeku okn ,d i{kh; (one sided) gS ftlesa fu.kZ;kFkZ mHk;

i{k }kjk dksbZ dkjxj lcwr o dkxtkr U;k;ky; dks miyC/k ugha Patna High Court Cr.Misc. No.5047 of 2017(3) dt.11-01-2019 3/4 djk;k x;k gSA Qyr% ifjfu;r vof/k esa /kkjk 144 Cr.P.C. ds rgr okn dk fu"iknu laHko izrhr ugha gksrk gsA"

7. Apart from this as is evident from the order of revisional court, more particularly, para-4 thereof, it is evident that at the end of the opposite party/first party, it was pleaded that the petitioner had already filed a partition suit relating to the disputed land asking for partition by metes and bounds which, the learned lower court for the OP Nos. 2 and 3, at the present stage controverted and submitted that it was wrongly placed at their end before the learned revisional court. Though partition suit was filed by the petitioner whereunder, these plots are not the subject matter of the partition suit.

8. Section 145(1) CrPC reads as follows:-

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

9. As stated above, the order of conversion dated 18.02.2016 did not satisfy ingredients as required under Section Patna High Court Cr.Misc. No.5047 of 2017(3) dt.11-01-2019 4/4 145(1) of the CrPC. Consequent thereupon, successive order are hereby, set aside. Petition is allowed.

10. In terms thereof, I.A. Nos. 2525/2018 and 1073/2017 are allowed.

    perwez                                    (Aditya Kumar Trivedi, J)

U      T

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Patna High Court - Orders