JUDGMENT
S.S. Sandahwalia, C.J.
1. Can the High Court in the exercise of its inherent powers under the Code of Criminal Procedure order the restitution of possession to the petitioner while setting aside a wholly arbitrary order of the Magistrate dispossessing him under the garb of an order under Section 144 of the said Code-is the significant question herein. This reference to the larger Bench has apparently been necessitated by veiled doubts about some discordance of precedent within this Court on the issue aforesaid.
2. The question aforesaid stems from a dispute between the petitioner Rajiv bharti alias Anil Kumar Sharma and the opposite party over the possession of the first floor of the shop claimed to be in the occupation of the petitioner It has been averred that the ground-floor of the premises has already been in his occupation for carrying on his business in partnership with one Satyanarain Singh and he had constructed the disputed room on the first floor for storing the goods of his business therein. The case set up by the opposite party was that the petitioner had inducted the aforesaid Satyanarain Singh as a tenant in Mae ground-floor and was forcibly trying to occupy the first-floor illegally It is however, common ground that the opposite party had filed Title Suit No. 39 of 1983 for the eviction of the petitioner from the ground-floor itself in which after evidence arguments had been heard but final order had not vet been passed.
3. It would appear that on the criminal side also on the basis of police report a proceeding under Section 144 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) had been initiated between the parties In the aforesaid proceeding the parties had filed their respective show and placed documents on the record. Arguments therein also were heard on their behalf but no final order could be passed by the Magistrate till the date fixed for passing orders, (that is, 17th May, 1983) and the proceeding died a natural death due to the expiry of the period of 60 days by then. However, on the 25th of May, 1983, the opposite party filed an application under Section 452 of the Code before the Magistrate in the aforesaid lapsed proceeding seeking a direction to the officer-in-charge to hand over the key of the disputed property to them and to have the same broken open. On the aforesaid application, the Magistrate is alleged to cave proceeded forthwith to pass the impugned order dated the 7th of June, 1983, without any notice to the petitioner and entirely behind his back. Therein even after noticing the pendency of the civil proceedings between the parties, it was directed peremptorily as follows:
Considering the above facts conclusion follows that the petitioner was the owner and proprietor of the disputed house and he can be treated and presumed as such for the purpose of enquiry under this Section. The previous proceeding has been dropped by the order dated 17-5-83 without any positive order. Under such circumstances it. is not desirable to keep looked the house of the petitioner specially when no proceeding is pending. In view of the above facts the police concerned is directed to open the look from the staircase of the house of the petitioner bearing holding No. 44,
Hence proceeding under Section 107 Cr.PC may be started if there be any apprehension of breach of peace.
It is the claim of the present petitioner that he had remained in possession of the disputed property continuously and uninterruptedly till the 1lth of June, 1983, However, in pursuance of the afore-quoted order, the officer-in-charge Kotwali, Munger, came on the spot on the aforesaid date after sunset and dispossessed the petitioner by breaking open the lock and handing over the possession of the disputed house to the opposite party without either showing any order of the Sub-divisional Magistrate or affording any opportunity to the petitioner to know the contents thereof. Aggrieved by the aforesaid order and the consequential proceedings, the present criminal miscellaneous has been preferred.
4. This case originally came up before my learned Brother S.S. Hasan, J., sitting singly. He noticed that the point Involved in this application, namely, whether the Magistrate under Section 144 of the Code can order dispossession or deliver the disputed property to one of the parties or not and further whether the Court can interfere with such an order and direct restitution of possession, was already pending before the Full Bench in Criminal Miscellaneous No. 5356 of 1979 (Kesho Prasad Singh v. The State of Bihar and other). He, therefore, directed that the present case be listed for admission after the decision in the said case. However, it would appear that when the matter came up before the Full Bench in Kesho Prasad Singh’s case (supra) on 3rd October, 1980 it was noticed that the lis had been carried to the Civil Court wherein it was then pending and, therefore, the case was not considered an appropriate one in which the controversy need be resolved or restitution of possession ordered. One of the parties thereafter sought permission to withdraw the application and the same was, therefore, permitted to be withdrawn. In the persent case it was noticed inevitably that some discordance of view in the two decisions of this Court in Indrasan Rai v. Enayat Khan and Anr. , and Mahendra Prasad Saluja v. Mosst. Sudarsan Devi Khanna and Anr. 1976 B.B.C.J. 190 had thus remained unresolved and the case was consequently referred to a larger Bench and that is how it is before us.
5. In the light of the above one must inevitably first turn to Indrasan Rai’s case (supra), which was decided by a Division Bench consisting of Das and Sinha, JJ. Therein the Magistrate purporting to act under Section 144 of the Code had directed the seizure of the truck from the petitioner and ordered its removal to the Fort at Buxar after holding that the opposite party was the real owner thereof and further to deliver its possession to the opposite party. The Division Bench on a consideration of the matter on principle and precedent held such an order to be wholly without jurisdiction and quashed the same. Sinha, J. observed as follow:
His action in removing the truck in question from the custody of the petitioner, first to the police station and then to the Fort, was bad enough, but what was still worse, was to have decided the question of title by holding in express terms that the truck belonged to the opposite party and then delivering the vehicle to the opposite party. This amounts to an usurpation of jurisdiction which did not exist and the learned (Magistrate should have known before long that under Section 144, Criminal Procedure Code, a merely summary power is given to prevent breach of the peace and it is never meant to give jurisdiction to a criminal court to decide finally even the question of possession and much less to decide questions of title and ownership of a property. I do not like to waste any more time over the consideration of the question whether the Magistrate acted within jurisdiction, suffice to it say that the action of the learned Magistrate in starting the proceeding under Section 144, on the facts of this case, seizing the truck, taking it from the custody of the petitioner, deciding the question of title as to the ownership of the truck, and then making it over to the opposite party, was wholly without jurisdiction, illegal and uncalled for and the order of the learned Sub-divisional Officer dated the 6th/7th October 1951, must be vacated and set aside.
Das, J. while concurring held succinctly that-
The learned Subdivisional Magistrate wrongly applied Section 144 of the Code of Criminal Procedure. It is clear that the provisions of that Section did not entitle the Subdivisional Magistrate to take a particular piece of property from the custody of ‘A’ and make it over to ‘B’ This is exactly what the learned Subdivisional Magistrate did.
6. On this point an identical view has been expressed in Mahendra Prasad Saluja’s case (supra). Therein also the Subdivisional Officer purporting to exercise powers under Section 144 of the Code on an application by the landlord directed the dispossession of the tenants after removing the belonging therefrom and handing over the same to the landlord. Setting aside that order, the High Court directed restitution of possession to the tenant forthwith.
7. I would notice that the aforesaid enunciation of the law with regard to the scope of the exercise of power under Section 144 of the Code was not even remotely challenged before us. Even otherwise, we are wholly in agreement with the ratio of these two cases on this point which is hereby affirmed.
8. It now remains to advert to some apparent discordance in the aforesaid two cases with regard to the power of the High Court for the restitution of possession in such a situation. However, a closer and incisive look into the two judgments would indicate that there is no real divergence of judicial opinion on this specific point as well. In Indrasan Rai’s case (supra) the matter was considered in the light of the inherent powers under the Code. Sinha, J. categorically took the view that the Court would be acting within its iherent power to order restitution in a proper case and held as follows:
….this Court, acting under Section 561-A possesses the power to order restoration of the truck in question to the petitioner. The question then is whether, in the circumstances of this case, the Court will exercise the power of restitution which is implicit in the inherent power of this Court.
Equally Das, J. had concurred as follows:
I would have had no hesitation in ordering restitution of the truck in this case, but for my considered opinion that this is really a case of disputed title and possession, and the parties must go to the Civil Court for a determination of the question of title.
It would appear that doubts in this context have arisen primarily because of the very peculiar facts thereof and the Bench in Indrasan Rai’s case (supra) did not think it expedient to restore possession of the truck to the petitioner but directed the parties to establish their title in the Civil Court. A close reading of the judgment would show that the learned Judges of Division Bench individually took the view that both the claim of ownership of the truck as also the claim of possession were hotly contested. It was noticed that restitution would only give some tactical advantage to one of the parties and the tame should not be easily encouraged. The respective claims raised appeared to be some what doubtful and of dubious nature and only a competent Civil Court could render a final adjudication thereon. It was in the light of these considerations that the Division Beach in Indrasan Rai’s case (supra) stayed its hands from ordering restitution though it had categorically declared that in law it had the power to do so. am, therefore, of the view that this case in no way casts any doubt on the power of the High Court to order restitution. Equally well it is to recall that in Mahendra Pratap Saluja’s case (supra) the Division Bench had in fact directed restitution in. terms. It thus seems to follow inexorably that as a matter of law the High Court in exercise of its inherent power under the Code can direct restitution of possession where the Impugned order under Section 144 of the Code is set aside or quashed.
9. To conclude=The answer to the question posed at the outset is rendered in the affirmative and it is held that in the exercise of its inherent power under the Code the High Court can order restitution of possession to the petitioner while setting aside a wholly arbitrary order of the Magistrate dispossessing him under the garb of an order under Section 144 of the said Code.
10. Following the law laid down above, there seems to be little doubt that the impugned order of the Magistrate dated the 7th June: 1983, is wholly lacking in jurisdiction and is hereby set aside, in the light of the same we could and indeed would have ordered the restitution of possession to the petitioner but for the peculiar and admitted circumstances of the case which have been pointed out. On the petitioner’s own showing, Title Suit No. 39 of 1983 on the identical cause of action had been instituted long before the present petition between the parties and it was not denied before us that the same had since been duly decided. Admittedly the parties now have either the forum of appeal and revision to challenge the same or claim execution of the said decree of the Civil Court. Therefore, in the facts and circumstances of this case, we do not think it desirable at this late stage to order restitution. The ultimate relief herein would abide the result of the civil proceeding admittedly going on between the parties even now.
11. In the result, this criminal miscellaneous petition is allowed in the limited terms aforesaid.