CRIMINAL MISCELLANEOUS No.34377 OF 2002 ------ In the matter of an application under Section 482 of the Code of Criminal Procedure. ------- MD. ANISH son of Late Md.Idrish, resident of village Chainpur Bangara, Police Station Maniyari, District Muzaffarpur …….. …….. Petitioner Versus 1.THE STATE OF BIHAR 2 (a). Most. Maya Devi wife of Late Shaukhi Lal Sah 2 (b). Manoj Sah 2 (c). Mukesh Sah Both sons of Late Shaukhi Lal Sah 2 (d).Muniya Devi D/o Late Shaukhi Lal Sah W/o Shiv Kumar Gupta All resident of village Muraul, P.O.Basauli, Police Station Maniyari, District Muzaffarpur …….. ……… Respondents --------- For the petitioner: Mr. Prasoon Sinha For the State : Mrs. Pushpa Sinha, Addl.P.P. For Opp. Party Nos. 2(a) to 2(d) : Mr.Bhuneshwar Prasad & Mr.ArvindKumar Verma. ---------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR --------- Rakesh Kumar,J. The petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 12.09.2002 passed by Sub.Divisional Magistrate, West Sub Division, Muzaffarpur in Case No. P-304 of 2002, whereby the prayer of the petitioner for payment to him Rs. 58,401/-, i.e. price of the mangoes sold in auction by order of the learned Sub.Divisional Magistrate and deposited, thereafter, in Nazarat, was rejected. 2. Short fact of the case is that on the basis of a petition filed by one Saukhi Lal Sah, who was earlier opposite party 2 no. 2, father of substituted opposite party no. 2(a) to 2(d), on apprehension that there were possibility of breach of peace due to the reason that petitioner and his men were adamant to pluck mangoes from the orchard standing in Khesra No. 749 measuring 3.7 and 1/2 decimals which was claimed to be the land of Madarsa Razakiya Nishwa, a proceeding under section 144 of the Cr.P.C. was initiated and after hearing the parties and considering the show cause the learned Sub.Divisional Magistrate, after being satisfied that either of the parties were not in a position to conclusively satisfy the Court regarding the title/possession over the land, the learned Magistrate converted the proceeding under Section 145 of the Cr.P.C. keeping in view the fact that mangoes which were in the orchard field had matured, under Section 145(8) of the Cr.P.C. directed for auction sale of the mangoes of the orchard situated over the disputed land and directed for depositing sale proceed in the Nazarat. As per the petitioner, the sale proceed after the auction of the mangoes of the orchard in question amounting to Rs. 58,401/- was deposited in the Nazarat. 3. The learned Sub.Divisional Magistrate by its order dated 26.05.2001 in Case No. M-739 of 2001 had converted the proceeding under Section 144 of the Cr.P.C. to a proceeding under Section 145 of the Cr.P.C. and by the said order directed for auction sale. The petitioner being aggrieved with the order dated 26.05.2001 preferred a revision vide Cr. Revision No. 125 of 2001 which was allowed by the Additional Sessions Judge-VII, Muzaffarpur by its order dated 23.04.2002. After the order dated 3 26.05.2001 passed in Case No. M-739 of 2001 was set aside by the revisional court, the father of the substituted opposite party no. 2 series, namely, Saukhi Lal Sah preferred a revision to this Court vide Cr. Revision No. 647 of 2002 which was disposed of on 08.08.2002 by a Bench of this Court. This Court did not interfere with the impugned order of the learned Additional Sessions Judge- VII, Muzaffarpur dated 23.04.2002. Thereafter the petitioner approached the court of Sub Divisional Magistrate, West Sub Division, Muzaffarpur vide Case No. P-304 of 2002 with a prayer to release the sale proceed of the mangoes which were sold on auction earlier. However, the Sub Divisional Magistrate by the impugned order dated 12.09.2002 did not pass a favourable order and kept the matter pending till the disposal of the partition suit bearing Partition Suit No. 142 of 1982. 4. Aggrieved with the order dated 12.09.2002 the petitioner approached this Court by filing the present petition which was admitted on 06.01.2005. Since during the pendency of the present case Saukhi Lal Sah died, a petition for substitution was filed and opposite party no. 2(a) to 2(d) were substituted on his place by order dated 12.04.2006. 5. Mr. Prasoon Sinha, learned counsel appearing on behalf of the petitioner submits that since the order of conversation of the proceeding from section 145 of the Cr.P.C. to a proceeding under Section 145 of the Cr.P.C. i.e. order dated 26.05.2001 was already set aside by the Additional Sessions Judge-VII, Muzaffarpur by its order dated 23rd April, 2002 passed in Cr. Revision No. 125 of 4 2001 which was also approved by this Court by its order dated 08.08.2002 passed in Cr. Revision No. 647 of 2002. there was no occasion for the learned Sub Divisional Magistrate, West Muzaffarpur to further detain the sale proceed in Nazarat and the entire amount of the sale of mango of the orchard in question was liable to be returned to the petitioner along with interest and the learned Magistrate has completely and illegally has not entertained the prayer of the petitioner for releasing of the same. As per Mr. Sinha, learned counsel for the petitioner, the impugned order is out and out perverse and without jurisdiction, which is liable to be set aside. Mr. Sinha also submitted that the learned Magistrate had incorrectly kept the matter in abeyance till the disposal of the partition suit. It was argued that opposite party no. 2 series being a members of completely different caste or religion were not having any connection with the partition suit in question i.e. Partition Suit no. 142 of 1982. 6. On the other hand, Mr. Bhuneshwar Prasad, learned counsel appearing on behalf of opposite party nos. 2(a) to 2(d) has vehemently opposed the prayer of the petitioner. It was argued that unless the issue in respect of title/possession over the land/orchard in question is finally decided, it would not be appropriate to pass a direction for release of the sale proceed in favour of the petitioner and the learned Magistrate by its order dated 12.09.2002 in Case No. P-304 of 2002 has rightly kept the matter in abeyance till the disposal of the Partition Suit No. 142 of 1982. Accordingly, it was submitted that the present petition is pre-mature 5 and the same is liable to be rejected. 7. I have also heard Mrs. Pushpa Sinha, learned Additional Public Prosecutor appearing on behalf of opposite party no. 1/State, who has supported the impugned order. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. After going through the materials available on record, it transpires that Md. Hussain was having two sons, namely, late Abdul Razzak and late Hafiz Md. Idrish. Abdul Razzak had got two daughters one Ali Bandi and Second Bibi Aklima Khatoon. The petitioner is son of late Hafiz Md. Idrish. Father of opposite party no. 2 series had taken a plea before the learned Magistrate that late Abdul Razzak had given the land in question to Madarsa Razakiya Nishwa through Wakfnama and one Md. Azim was appointed as Motawali. However, after the death of Md. Azim, father of opposite party no. 2 series being a care taker was looking after the orchard in question which is the property of Madarsa Razakiya Nishwa. It further appears from the materials on record that on earlier occasion also at the instance of father of opposite party no. 2 series a proceeding under Section 145 of the Cr.PC. was initiated vide Case No. M- 416A of 1995 against the petitioner which was subsequently dropped on 19.09.1995 on the ground that Partition Suit No. 142 of 1982 was pending. From the order dated 23rd April, 2002 in Cr. Revision NO. 125 of 2001, it further appears that after vesting Zamindari the petitioner-landlord had filed return jointly in the name of late Abdul Razzak and late Hafiz Md. Idrish to the State of Bihar 6 covering the land in question. Besides other land, disputed land was coming in joint possession. However, subsequently a Partition suit was filed bearing Partition Suit No. 142 of 1982 in which father of the petitioner had claimed three annas and four paise share in the property and after his death the petitioner was substituted. The said Partition Suit No. 142 of 1982 was pending in the Court of Sub- Judge-I, Muzaffarpur even on the date of passing of the impugned order. From the materials on record it is evident that the petitioner cannot be treated as sole title holder of the orchard in question. Unless it is decided, it would not be advisable to release the sale proceed in favour of either of the parties. The release may await the result in partition suit. The learned Magistrate by the impugned order has rightly kept the matter of payment in abeyance till the disposal of the Partition Suit No. 142 of 1982. 9. In view of the facts and circumstances as indicated above, the Court is of the opinion that the order dated 12.09.2002 passed by the Sub.Divisional Magistrate, West Sub Division, Muzaffarpur in Case No. P-304 of 2002 requires no interference and accordingly, the petition stands rejected. Patna High Court The 31st January,2011 Md.S./NAFR ( Rakesh Kumar, J.)