IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.440 of 2008 RAVI KUMAR & ANR Versus THE STATE OF BIHAR & ORS ----------- 10. 13.01.2009. Heard learned counsel for the parties. The petitioners have prayed for directing the respondent authorities, particularly the Officer- in -charge and the Sub inspector of Malsalami Police Station ( respondent nos 6 & 7) to remove the seal and lock put by them in the petitioners’ house/shop bearing No. 26/23/21 SS 260 of Ward No. 30/35/54 Seat No. 263, Municipal Plot No. 347 and 348, situated at Mohalla Marufganj, Police Station Malsalami, Patna in connection with Malsalami Police Station case no. 34 of 2008. Case of petitioners is that land owner Raj Kumar Agarwal and his son Sri Gopal Agrawal executed power of attorney dated 19.2.2008 in respect of the shop as above in their favour. He submits that respondent no.9, namely, Shailesh Kumar filed police case bearing Malsalami Police Station case no. 34 of 2008 under sections 341,323,448,504,506,427,379/34 I.P.C. against one of the Executor of power of attorney and in favour of the petitioner. In the FIR respondent no.9 alleged that he is using the premises in question since last 28 years and the accused persons forced him out of the shop and locked the same. The petitioner submits that police vide annexure 6 recommended for 107 Cr.P.C. proceeding. In his forwarding letter to the S.D.M., Patna City, and respondent no.7 stated that he has put a seal on the lock as the premises was forcibly locked by Gopal Agrawal, one of the executors of power of attorney in favour of the petitioners. The petitioners further submit that - 2 - police is not authorized to put a seal on the premises while recommending a proceeding under section 107 Cr.P.C. rather it could be attached under section 146 Cr.P.C. after initiation of 145 Cr.P.C. proceeding. Mr Dhrub Narain, learned Senior Advocate, appearing for respondent no.9 submits that the writ application is incompetent as petitioners have not made the executants of power of attorney a party. Furthermore, a civil suit between the co-sharers is also pending in the Civil Court, Patna city in respect of the property in question, wherein there is an order of status quo. Heard the parties and perused the record. A police officer would be within his right to put a lock on a portion of premises which is being used for undesirable activities if there is substantive case in respect of it. In a case where rival parties are claming possession, right or title over premises, the appropriate course for police officer would be to make a recommendation to a court of Executive magistrate for initiating a proceeding under the existing law. He cannot on himself take the authority to lock the premises in such eventuality. In the instant case, the S.D.M., Patna city has directed the police to remove the seal vide order dated 29.4.2008. In the aforesaid order, the SDM noted that a title suit is pending in respect of suit property in Civil Court. It is also not in dispute that in the title suit bearing no. 62 of 2008 pending in the court of Sub Judge-I, Patna City, order of status quo was passed on 2.7.2008. In the aforesaid circumstances, the action of police in putting a seal on the shop as well as action of petitioners in locking the aforesaid shop is wholly unjustifiable. It would be entirely up - 3 - to the Civil Court to decide as to who would be in possession of the premises in question pending final hearing of the suit. The interest of petitioners can be represented by Raj Kumar Agrawal and his son Gopal Agrawal who are parties in the aforesaid civil suit. It will be open to the parties to pursue any alternative remedies in law. The writ petition is disposed of with the aforesaid observations. Shashi. (S.P.Singh,J).