Ravi Nath Verma, J. - (1.) INVOKING the inherent power of this Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), the petitioner has prayed for quashing of the order dated 15.02.2008 passed by the Sub -Divisional Magistrate (in short "the S.D.M."), Bermo at Tenughat in Case No. 19 of 2008 by which the proceeding under Section 144 of the Code had been initiated with respect to the land appertaining to Khata No. 34, Plot No. 96, area 0.53 acres and also the land of Khata No. 01, plot No. 53, area 3.10 acres of Mouza Burhsera within Dugda Police station, Bokaro and for quashing of the subsequent orders dated 28.02.2008 and 05.03.2008 whereby the said proceeding has been converted under Section 145 and order for attachment of the disputed land under Section 146(1) of the Code has been passed and the Officer -in -charge, Dugda Police Station has been appointed as receiver of the said land respectively.
(2.) BEFORE I examine the initiation of the proceeding under Section 144 and its conversion under Section 145 of the Code, the background of the case is necessary to be discussed to appreciate the issue involved in this case. The case of the petitioner, as it appears from the record, is that the petitioner has been coming in possession of the disputed land appertaining to Khata No. -1, Plot No. 53, area 3.10 acres and Khata No. 34, Plot No. 96, area 0.53 acres of land of village Burhsera within Dugda Police station, Bokaro and substantial structures were also constructed over the said land. But the opposite party No. 3 - Baneshwar Manjhi also claimed his right, title and interest over the aforesaid land and tried to disturb the uninterrupted possession of the petitioner. The said Baneshwar Manjhi - opposite party No. 3 had earlier filed a land restoration case bearing No. 46 of 2006 -2007 in the Court of L.R.D.C., Bermo at Tenughat against the present petitioner and other family members in respect of the disputed land and which was decided in his favour vide order dated 16.03.2007. Being aggrieved by the said order, the petitioner preferred land restoration appeal bearing appeal No. 05 of 2007 before the learned Additional Collector, Bokaro but the appeal was dismissed vide order dated 12.11.2007. Whereafter, the petitioner and others moved before the learned Commissioner, North Chhotanagpur Division, Hazaribag in Revision No. 134 of 2007 and prayed for stay of the orders of appellate court as well as original court and after hearing both the parties, the revisional court by order dated 20.11.2007 stayed the orders of both the courts. But on 14.11.2007, the opposite party No. 3 -Baneshwar Manjhi along with his associates tried to forcibly enter and take possession of the land in dispute and in such attempt committed overt act but due to intervention of Circle Officer and Magistrate, the matter was settled. However, Dugda P.S. Case No. 37 of 2007 was instituted at the instance of the petitioner on 15.11.2007 under Sections 147, 427 and 379 of the Indian Penal Code against the opposite party No. 3 and others. Again on 15.02.2008, the opposite party No. 3 along with his men armed with various weapons came to his house and destroyed several house hold articles and valuables. During their aggressive activities, the police party along with high officials arrived there and took control over the situation whereafter Dugda P.S. Case No. 06 of 2008 was lodged on 15.02.2008 under Sections 147, 148, 149, 323, 452, 427, 379/504 I.P.C. against opposite party No. 3 Baneshwar Manjhi and his associates, who also lodged one case bearing Bokaro Sector -IV P.S. Case No. 02 of 2008 on 17.02.2008 under Section 3(iv)(x) of SC/ST (Prevention of Atrocities) Act, 1989 against the petitioner and others. Apprehending the breach of peace between the parties, Sub -Divisional Magistrate, Bermo at Tenughat at his own instance initiated and drawn up the proceeding under Section 144 of the Code and directed both the parties to maintain peace and restrained them from going over the disputed land and further directed both the parties to file their respective show causes. However, from the order -sheet of the court of S.D.M., Bermo at Tenughat, it appears that none of the parties filed their show cause. So, after receiving the report of the officer in -charge of the concerned police station and the report of the Circle Officer on 28.02.2008, the S.D.M. apprehending the breach of peace between the parties and their attempt to take possession of the land in question converted the proceeding under Section 145 of the Code and again directed both the parties to file their respective show causes. Since, the situation was not under control and was still grim and tense between the parties, the learned S.D.M. apprehending any untoward incident attached the property in dispute under Section 146(1) of the Code and appointed the Officer in -charge, Dugda police station as receiver. Learned counsel Mr. Mishra appearing for the petitioner assailing the initiation of proceeding under Section 144 of the Code at the instance of Sub -Divisional Magistrate and its conversion under Section 145 of the Code and attachment of the disputed land under Section 146 of the Code as perverse and bad in law seriously contended that when a proceeding under Chhotanagpur Tenancy Act for restoration of land in dispute was pending before a competent authority, the conversion of proceeding under Section 144 of the Code to a proceeding under Section 145 of the Code and attachment of property was uncalled for and not sustainable in the eye of law. It was also submitted that the orders passed by the L.R.D.C. and the appellate court were all stayed by the Commissioner of North Chhotanagpur Division, Hazaribagh, hence attachment of property in dispute and conversion of the proceeding under Section 146 of the Code was not permissible. Even if there was apprehension of breach of peace between the parties in respect of possession of the land in dispute, at best a proceeding under Section 144 of the Code can be initiated but the same cannot be converted under Section 145 of the Code. Learned counsel in support of his contention placed reliance on a case Amresh Tiwari VS. Lalta Prasad Dubey and another; : (2000) 4 SCC 440 wherein it has been held that when possession is being examined by the civil court and the parties are in a position to approach the civil court for adequate protection of the property during pendency of the dispute, the parallel proceeding under Section 145 should not continue.
(3.) CONTRARY to the aforesaid submissions, learned counsel Mr. Anoop Kumar Mehta appearing for the opposite party No. 3 contended that merely because a suit is pending does not mean that proceeding under Section 145 of the Code should be set at naught. It was also submitted that though the power of a Civil Court under this Chhotanagpur Tenancy Act is given to a competent authority and the case for restoration of land in dispute filed by the opposite party No. 3 was allowed in his favour by original court as well as by the appellate court but as there was apprehension of breach of peace between the parties, the proceeding in question was initiated suo moto at the instance of the Sub -Divisional Magistrate. Hence, the court has not committed any error and in such situation, a parallel proceeding is no bar under Section 145 of the Code, which is only preventive in nature.;