IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.53037 of 2008 Rajesh Kumar Singh, son of Ram Sakal Singh, village and PS Udwant Nagar, District Bhojpur – Petitioner. Vs. 1) The State of Bihar. 2) Awadesh Kumar Singh, son of Nagadi Singh, village Tarnawn, PS Jagdishpur, District Bhojpur. 3) Satyendra Singh, son of Late Kuldeep Singh, 4) Sudhir Singh, son of Brijnandan Singh, both of village and P.S. Udwant Nagar, district Bhojpur – Opposite parties. … For the petitioner : Mr. Chitaranjan Sinha, Senior Advocate and Mr. Jai Prakash Singh, Advocate. For the S t a t e : Mr. Jharkhandi Upadhyaya, Addl. P.P. For the opposite parties : Mr. Shakil Ahmad Khan, Senior Advocate and Manoj Kumar, Advocate. 3 12.8.2009 Heard learned counsel for the parties. The petitioner has challenged the order, dated 10.9.2008 passed by learned Executive Magistrate, Udwantnagar PS case No. 48/2006 whereby his application to drop the proceeding under section 146 (1) of the Code of Criminal Procedure („the Code‟ hereinafter) has been rejected. The facts of the case are there is a brick kiln situated on khata no. 18, plot no. 718 and khata no. 1200, plot no. 719 which is the cause of dispute between the parties. Opposite parties 2,3 and 4 being partners started the business of brick kiln. The petitioner after paying Rs. 10 lakhs took possession of the brick kiln on the basis of an agreement executed between them for a period of twelve years. An application was filed on 21.2.2006 before the Executive Magistrate, Ara by opposite Party no. 2 against opposite Party no.3 for institution of a proceeding under section 144 of the Code. The Executive Magistrate called for a report 2 from Udwantnagar police, which was submitted on 28.2.2006. It is relevant to mention that at that stage the petitioner was not made a party. The report indicates that there is a dispute between the partners and that the petitioner is in possession of the brick kiln. Details have been mentioned with regard to the dispute between the partners in the said report and it has been recommended that a proceeding under section 107 of the Code be initiated by the Executive Magistrate. On 29.4.2006 the proceeding under section 144 was converted into one under section 145 of the Code on the basis of the report of the police, dated 28.2.2006 (Annexure 1). Thereafter, the Anchal Adhikari also visited the disputed land and submitted his report to the Subdivisional Officer on 6.11.2007. According to the report of the Circle officer, Rajesh Kumar Singh, the present petitioner was found to be in possession of the land. It is said that deed of exchange was also produced by Rajesh Kumar Singh which indicated that the petitioner has paid lump sum amount to Satyendra Singh and gave certain land to other two partners. Thereafter an application was filed by the opposite parties for taking steps for issuing an order under section 146 of the Code. Before issuance of the order the Executive Magistrate called for a report which is at Annexure 5 also by the Officer Incharge of Udwantnagar P.S. The report dated 23.6.2008 indicates that there is a dispute between the partners i.e. Awadhesh Kumar Singh, Sudhir Singh and Satyendra Singh with respect to the amount of money they had spent in the business of brick kiln. The Officer Incharge found that the petitioner was in possession of the 3 brick kiln and that bricks were lying on the land were manufactured by Rajesh Kumar Singh. It has also been stated in the said report that as the brick kiln has been shut down on the orders of the Executive Magistrate, Rajesh Kumar Singh is the only person who is suffering as a result of the shut down. In conclusion the Officer Incharge has stated that if the brick kiln is permitted to function, then there would not be any sort of dispute or apprehension of law and order problem. On the basis of the report the Executive Magistrate passed an order, dated 24.8.2006 by which he allowed the petition filed on behalf of the Ist party and instituted a proceeding under section 146(1) of the Code and appointed the Circle Officer, Udwantnagar as a receiver under section 146(2) of the Code. I may point out here that the court has come to the finding that there is a dispute between the partners and the land holder and as such there is emergent situation which requires the initiation of a proceeding under section 146 of the Code between the two. At that stage the petitioner was not a party to the entire proceeding and was only added as a party on 17.12.2007. On being added as a party on 17.12.2007, the petitioner filed an application that the proceeding under section 146(1) of the Code may be dropped as requirement for invoking section 146 was not made out in the facts of the case. The main contention of the petitioner before the Executive Magistrate was that all the reports indicated that the petitioner was in possession of the brick kiln and that in fact no proceeding under section 145 of the Code would lie in 4 view of the judgment of this court in the case of Ambika Singh and others vs. Ramchandra Singh and others, reported in 1970 B.L.J.R. 936. The court below rejected the application of the petitioner without considering the judgment cited by him. The grounds taken for dismissing the application of the petitioner are that the court came to a conclusion that the brick kiln is a permanent structure and that there is apprehension of breach of peace between the opposite parties. Learned counsel for the petitioner submits that the petitioner at no stage was a party in the proceeding and it was only on 17.12.2007 that he was added as a party and, therefore, all the proceedings behind his back and without giving him an opportunity of being heard are violative of principles of natural justice. Apart from this, it is submitted that all the reports of the Officer Incharge at Annexures 1 and 3 and of the Anchal Adhikari at Annexure 2 indicate that the petitioner was in possession of the brick kiln although at that stage the petitioner was not even a party in the proceeding and had no opportunity to explain his case to the officer conducting the enquiry. It is also contended that the judgment in the case of Ambika Singh (supra) indicates that in fact no proceeding could be instituted under section 145 of the Code. On the other hand Mr. Shakil Ahmad Khan, learned Senior counsel appearing for the opposite parties submits that the order, dated 24.8.2006 indicates that there was a serious law and order problem and, therefore, the order under section 146 of the Code is 5 justified. Apart from this, it has been submitted that the Anchal Adhikari had in fact no authority to submit a report before the Subdivisional Officer and as such his report should not be taken into consideration by the Executive Magistrate or this court for considering whether the petitioner was in possession of the said land. After considering the rival contentions raised on behalf of the parties, this court finds that as far as the application of the petitioner is concerned, the court ought to have considered the issues raised by him. For invoking a proceeding under section 146 of the Code, there must be a finding that the case is one of an emergency and would lead to serious disturbance of law and order. Although the Executive Magistrate had only found that there is a dispute between the partners with respect to the amount of money that they had invested in the business and, therefore, it cannot be said that there was serious dispute that would lead to a serious law and order problem and blood shed. There is no finding that the petitioner was involved in such a dispute or that the dispute was between the petitioner and the partners and others in the case. Therefore, as far as the question of section 146 of the Code is concerned, the court ought to have come to a finding that no emergency existed between the petitioner and others to warrant action under Section 146 Cr.P.C.. The court has merely found that there is apprehension of breach of peace which does not justify the imposition of a proceeding under section 146(1) of the Code. It is relevant to refer to the judgment in the case of 6 Ambika Singh (supra). This court has come to a conclusion after considering the expression “land” or “water” used in sub-clause (2) of section 145 of the Code in context of the General Clauses Act and Transfer of Property Act, it has been held that a brick kiln does not come within the definition of land or water and has, thus, excluded kiln of brick from a proceeding under section 145 of the Code by holding that the kiln of the bricks not being immoveable property, would not come within the purview of a proceeding under section 145 of the Code. This being the position in law that 145 proceeding cannot be initiated on kiln of bricks, the order under section 146(1) of the Code viz-a-viz the petitioner and the opposite parties can hardly be justified. Accordingly I quash the orders, dated 24.8.2006 and 10.9.2008 passed by the Executive Magistrate, Udwantnagar. In the result, this application is allowed. A.F.R./haque (Sheema Ali Khan, J.)