- (1.)The petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashing the order dated 11-12-2006 passed by the learned Sub Divisional Magistrate, Dhalbhum in Misc. Case No. 734 of 2004 whereby a receiver was appointed under the provisions of Section 146 Cr. P.C. with respect to the disputed premises. It is contended that the impugned order is totally illegal and against the materials on record and without application of judicial mind and is fit to be quashed.
(2.)The facts of the case in brief is that on the basis of an application filed by the opposite party No. 2 before the learned Sub Divisional Magistrate, the learned Magistrate initiated proceeding under Section 144 Cr.P.C. in Misc. Case No. 734 of 2004 against the present petitioner as second party. The opposite party No. 2 as the first party had claimed possession over the disputed premises described by him as the premises of Swami Satyanand Saraswati Ashram under plot Nos. 661 and 662 within JNAC ward No. 15 situated at Namda Basti, P. S. Golmuri, district Jamshedpur and claiming himself to be the vice president of the Ashram, had contended that the premises was under the exclusive possession of the Ashram. The petitioner in response to the notice issued to him under the proceeding, had appeared and contested the claim of the opposite party No. 2 stating that as a matter of fact, on the aforesaid plot Nos. 661 and 662 measuring total area of 5 acres, the petitioner had started the school as its founder member under the name of Ramjee Singh Vidya Niketan on 1st January 1979 and in a portion of the land in plot Nos. 661 and 662, an ashram under the name of Swami Satyanand Sarswati Ashram, was also started in the year 1983 of which the petitioner himself was the working president. The petitioner has claimed that 5 acres of the land under khata No. 341 corresponding to new khata No. 5, old plot No. 2772 corresponding to new plot Nos. 661 and 662, was in his possession and he had donated the same for the construction of the school and though the land was originally recorded as lease land of M/s. TISCO Limited, the petitioner had remained in possession of the land in question for the past more than ten years. The school was established with the cooperation of the people of the locality and since its inception, it was running smoothly. Entry in the survey record of rights published in the year 1996, depicts possession of the school and club over the lands in plot Nos. 662 and 661 respectively, has been shown since 1974 and the area of lands locating the school and ashram has been shown separately in the aforesaid revenue records. The petitioner had claimed that the opposite party No. 2 along with his associates, had formed Brahmarshri Vikas Manch in the year 2002 and began to lay covetous eyes on the lands of the ashram and the school and had forcibly attempted to intrude into the school and ashram which was resisted by the people of the locality and consequently, a proceeding under Section 107 Cr. P.C. was initiated in the year 2002. Soon thereafter, a portion of the school premises was set on fire by mischievous elements, against which a criminal case for the offence under Section 436 IPC was registered at the police station against certain named accused. The proceeding which was initially commenced under Section 144 Cr. P.C. vide Misc. Case No. 734 of 2004, was converted into a proceeding under Section 145 Cr PC and on the application filed by the opposite party No. 2, the learned Magistrate passed an order on 14-6-2005 attaching the school premises and appointing a receiver, under Section 146(1) Cr. P.C. Being aggrieved, the petitioner had filed revision application before the Sessions Judge challenging the order of attachment and appointment of receiver on the ground that the learned Magistrate had earlier called for a report both from the revenue clerk as also from the police and despite specific statement in the reports submitted by both agencies about existence of the school being in possession of the petitioner, the learned Magistrate without application of judicial mind, had passed the order of attachment. The criminal revision application vide Cr. Revision No. 109 of 2005 was however dismissed by the Additional Sessions Judge vide his order dated 11-11-2005 which prompted the petitioner to file Cr. Misc. Application No. 32 of 2006 before this Court challenging the order passed both by the learned Sub Divisional Magistrate and also the order of the revisional Court. During the pendency of the aforesaid criminal miscellaneous No. 32 of 2006, vide order dated 18-5-06, this Court directed that the furniture seized from the school be returned/restored to the school and ashram and the school and ashram be opened for the students studying there with a condition that respective parties shall ensure maintenance of peace and tranquillity until final disposal of the proceeding under Section 145 Cr. P.C. The circle officer, who was the appointed receiver and was made party respondent in the aforesaid misc. proceeding, in his counter-affidavit, had categorically stated about the existence of the school in the disputed land and also affirmed the fact that the school was in possession of the petitioner. Pursuant to the aforesaid order dated 18-5-2006 passed by this Court and corresponding direction issued by the Sub Divisional Magistrate to the circle officer/receiver to hand over the possession of the school to the petitioner after removing locks from there, a written memorandum in confirmation of the restoration of the possession to the petitioner was executed by the circle officer in presence of the officer-in-charge of the concerned police station. In his counter-affidavit, the circle officer had acknowledged that pursuant to the order of attachment being vacated by the order of this Court, he had handed over the possession of the school to the petitioner. Consequent upon restoration of possession of the school premises along with its furniture, the petitioner withdrew the Misc. Case No. 32 of 2006, as filed by him, with the permission of the Court on 12-10-2006. Permission for withdrawal was granted though with an observation that the proceeding under Section 145 Cr. P.C. shall continue. It was during the pendency of the proceeding that the opposite party No. 2 filed yet another application before the learned Sub Divisional Magistrate praying again for appointment of receiver in respect of the disputed premises and despite vehement objection of the petitioner, the learned Sub Divisional Magistrate by his order dated 11-12-2006, had appointed Sri Niraj Kumari, Executive Magistrate, as receiver over the property and land in dispute. Pursuant to her appointment, the Receiver again seized the possession of the school premises from the petitioner by commanding him to deliver the keys of the school to her.
(3.)Having detailed the facts, learned counsel for the petitioner submits that the impugned orders are thoroughly illegal and contrary to the provisions of Section 146(1) Cr. P.C. It is contended by the learned counsel that while recording order of appointment of receiver and directing attachment of the property involved in the dispute, the learned Magistrate did not apply his judicial mind at all to consider as to whether there was circumstances existing and sufficient enough to warrant immediate attachment of the property and also failed to consider that by an order of the High Court, the possession of the property, which was earlier attached, was delivered to the petitioner and since after the delivery, the petitioner was in peaceful possession of the property. Learned counsel adds that the learned Sub Divisional Magistrate has also failed to consider the fact which was even acknowledged by the revenue clerk and the police officer and also by the circle officer who was earlier appointed as Receiver, in their respective reports, that the school under the name of Ramjee Singh Vidya Niketan was very much in existence on disputed plot and the same was in possession of the petitioner. 3A. It is against the aforementioned second order of attachment, as passed by the learned Sub Divisional Magistrate on 11-12-2006 and the taking of the possession by the second receiver on 10-1-2007 that the petitioner has filed the instant application.