Bachan Kishore Dubey and Others vs Bihari Tewary and Another

S.B. Sinha, J.—This application is directed against an order dated 23-3-1982 passed by Shri Sorer/g Agapati, Executive Magistrate, Daltonganj in Misc. No. 1102/78 whereby and where under he declared the possession of the opposite party No. 2 in a proceeding u/s 145of the Code of Criminal Procedure as also an order dated 24-11-1986 passed by Shri R.P. Pathak, 2nd Additional Sessions Judge, Palamau in Cr. Rev. case No. 67/1982 dismissing the said revision application. Mr. K.K. Sahay, the learned counsel appearing on behalf of the petitioners raised a short question in support of this application. Learned counsel submitted that from a perusal of Annexure-1 to the application it would appear that the Sarpanch of the concerned Gram Panchayat exercised his jurisdiction u/s 64(1) of the Bihar Panchayat Raj Act, 1947 and as such according to the learned counsel, the S.D. O. had no jurisdiction to initiate a proceeding u/s 144of the Code of Criminal Procedure and consequently had also no jurisdiction to convert the same into a proceeding u/s 145of the Code of Criminal Procedure.

Learned counsel in this connection has placed strong reliance upon a decision of this court in Naresh Yadav v. Anadhesh Sharma reported in 1981 P.L.J.R. 120 as also another decision of this court in Madan Singh v. Ram Gopal Ghutghutia reported in 1974 B.B.C.J. 70.

Section 64of the Bihar Panchayat Raj Act, 1947 reads as follows:

Whenever the Sarpanch has reason to believe that a breach of the peace or disturbance of the public tranquility is imminent and immediate prevention or speedy remedy is desirable, be may by a written order stating the material facts of the case and served in the prescribed manner, direct any person to abstain from a certain act or to take action with respect to a certain property in his possession or his management.

As soon as the Sarpanch has issued an order under sub-section (1) he shall submit the proceedings of the case to the Sub-divisional Magistrate who may either confirm the order or discharge the notice after hearing the parties to the dispute, if they so desire.

An order passed under sub-section (1) shall remain in force for thirty days.

It is true as has been held in the decisions cited at the bar that the Sub-divisional Magistrate upon receipt of the order of the Sarpanch in terms of the aforementioned provision, could either confirm or discharge the prohibitory order passed by Sarpanch after giving an opportunity of hearing to the parties.

However, in this case the situation appears to be absolutely different. From a perusal of Annexure-1 to the application it would appear that in his report purported to be under sub-section (1) section 64of the Panchayat Raj Act, the Sarpanch himself requested the S.D.O. to initiate a proceeding u/s 144of the Code of Criminal Procedure and upon the said request, the proceeding u/s 144of the Code of Criminal Procedure initiated.

It, therefore, is evident that the Sarpanch did not act strictly in terms of section 64of the aforementioned Act.

In Sia Saran Pd. Singh v. Jagdish Saran Pd. Singh reported in 1974 B.B.C.J. 383 and Smt. Nityanandini Devi and another v. Kamalesh Narain Singh and Ors. in Cr. Misc. No. 3542/74 (reported in 1976 B.B.C.J. 4N). it has been held that where a report submitted by the Sarpanch does not conform to the provision of section 64of the Bihar Panchayat Raj Act, initiation of proceeding u/s 144of the Code of Criminal Procedure can not be said to be wholly illegal and without jurisdiction. Further in this case petitioner did not challenge the initiation of the proceeding u/s 144of the Code of Criminal Procedure at an initial stage. In the decision cited by Sri. K.K. Sahay, the initiation of the proceeding itself was challenged.

Even after the said proceeding u/s 144of the Cr. P.C. was converted into proceeding u/s. 145of the Cr. P. C, the petitioner did not question the order passed by the S.D.O. and submitted himself to the jurisdiction of the learned Executive Magistrate. He without any demur adduced evidence and Sled his documents in said proceeding.

Even before the provisional court the petitioner did not challenge the jurisdiction of S.D.O. so far as initiation of the proceedings u/s 144and 145of the Code of Criminal Procedure.

In terms of section 145(1) of the Code of Criminal Procedure the Magistrate has power to initiate a proceeding thereunder if he is satisfied that there exists an apprehension of breach of peace with regard to the possession of immovable property.

The satisfaction arrived at by S.D.O. in this case was on the basis the respective show causes filed by the parties. Further in view of the fact that the petitioner did not challenge the initiation of proceeding u/s 144of the Cr. P.C. earlier, in my opinion the petitioner should not be permitted to raise the said question before this Court for the first time. In this view of the matter there is no merit in this application which is accordingly dismissed.