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Magistrate Not Empowered To Effect Delivery Of Possession Of Property U/S 107 CrPC: Jharkhand High Court

Raashi Saxena ,
  21 November 2022       Share Bookmark

Court :
Hon’ble High Court of Jharkhand
Brief :

Citation :
2022 LiveLaw (Jha) 49

CASE TITLE:  
Sukhlal Biruly Vs. The State Of Jharkhand And Ors.

DATE OF ORDER: 
4th May 2022

BENCH: 
Justice Sanjay Kumar Dwivedi

PARTIES: 
Petitioner : Sukhlal Biruly
Respondent : The State of Jharkhand, Kamla Devi, Jagmohan Sawaiyan

SUBJECT

A Magistrate is not permitted to give effect to the handover of possession of the property under section 107 of the Criminal Procedure Code, according to a recent Jharkhand High Court observation. 

IMPORTANT PROVISIONS

Section 107 of the Code of Criminal Procedure-

  • The major objective of the rules outlined in this section is to prohibit any sort of wrongdoing or disturbance of the peace from arising.
  • The provisions mentioned in this Section adhere to clauses (2), (3), (4), and (5) of  Article 19 of the Indian Constitution and are primarily in the public's best interest. 
  • The Executive Magistrate has the authority under Section 107 to demand a bond from the defendant before an offence is committed. 
  • Only when the accused fails to follow the magistrate's direction to execute and abide by the bond will he be placed in jail.

BRIEF FACTS

The petition was filed to overturn the Sessions Judge's decision to dismiss the petitioner's criminal revision application on the grounds that the petitioner was not a party to the proceeding in which the application was made, as well as to overturn the decision made in Miscellaneous Case No. 57 of 2016 under Section 107 of the Cr.P.C., wherein the learned Sub Divisional Magistrate, Sadar, Chaibasa was pleaded to.

ISSUES RAISED

Whether the 2017 order given by the learned Sessions Judge quashable or not ?

ARGUMENTS ON BEHALF OF THE PETITIONER

  • According to the counsel for the appellant, the petitioner is the rightful owner of the piece of land in question because he acquired it through a sale agreement with O.P. no. 3 that is attached as Annexure 1 to the petition on August 31, 2015. 
  • He argued that the magistrate lacked the authority to issue an order under section 107 of the Criminal Procedure Code that transferred possession to O.P. No. 2.
  • Further, he claimed that the court was simply required to consider whether there had been any disturbances or breaches of peace, and that under the impugned ruling, the O.P. No. 2 had been granted possession.

ANALYSIS OF THE COURT

  • The Court noted that the case filed on 22.9.2016 according to the impugned order sheet, and by the subsequent order dated 09.05.2017, without calling for the other parties to file show cause, had been passed without following the due process of law because the show cause had not been taken into consideration.
  • The court ruled that the order lacks jurisdiction and that it cannot be permitted to stand if any criminal activity is taking place. 
  • Furthermore, it was noted that the court had dismissed the petition in the revisional decision on the grounds that the petitioner was time-barred and not a party to the action. 
  • According to the sale deed that is affixed to the petition, the petitioner may have bought the subject property.

CONCLUSION

After thorough consideration of all the facts, the court was of the opinion that the challenged decisions, dated 23.9.2017 in Criminal Revision No.30 of 2017 and 09.05.2017 in Miscellaneous Case No.57 of 2016, respectively, issued by the learned Sessions Judge of West Singhbhum at Chaibasa was set aside. The Cr.M.P. No. 1045 of 2018 is approved and adjudicated. I.A., if any, is likewise eliminated.

Click here to download the original copy of the judgement
 

 
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