Bombay High Court
Radhelal Gan-Ulal Jaiswal And ... vs The State Of Maharashtra Thr. ... on 7 November, 2017
Bench: R.P. Mohite-Dere
711WP848.16-Judgment 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 848 OF 2016
PETITIONERS :- 1. Radhelal Ganulal Jaiswal, aged about 52
years, Occupation: Business, Resident of
Arni, Taluka Arni, District Yavatmal.
2. Shrikant Ganulal Jaiswal, aged about 53
years, Occupation: Business, resident of Arni,
Taluka Arni, District Yavatmal.
...VERSUS...
RESPONDENTS :- 1. The State of Maharashtra, through Police
Station Officer, Arni, Taluka Arni, District
Yavatmal.
2. The State of Maharashtra, through its Sub-
Divisional Magistrate, Yavatmal, Taluka
District Yavatmal.
3. Manoj Wamanrao Munginwar, aged about
42 years, resident of Ward No.1, Arni,
Taluka Arni, District Yavatmal.
4. Shrikant Wamanrao Mungnwar, aged about
50 years, resident of Ward No.1, Arni,
Taluka Arni, District Yavatmal.
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Mr. A.J.Gilda, counsel for petitioners.
Mr.Shyam Bissa, Addl.Public Prosecutor for respondent Nos.1 and 2.
Mr. N.S.Bhattad, counsel for respondent Nos.3 and 4.
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CORAM : SMT. REVATI MOHITE DERE, J.
DATED : 07.11.2017
O R A L J U D G M E N T
Rule. Rule is made returnable forthwith. The petition is
heard finally at the stage of admission with the consent of the learned
counsel for the parties.
2. By this petition, the petitioners have impugned the order
dated 18/10/2016 passed by the Sub-Divisional Magistrate, Yavatmal
under section 144 of Criminal Procedure Code.
3. This Court vide order dated 27/10/2016 was pleased to
stay the effect and operation of the said impugned order.
4. Learned counsel for the petitioners states that the
impugned order dated 18/10/2016 passed under section 144 of the
Code has lapsed by efflux of time, in view of sub-section (4) of section
144. He submits that after the impugned order dated 18/10/2016 was
passed, the Sub-Divisional Magistrate, Yavatmal erected a fence and put
up a board on 22/10/2016. The learned counsel for the petitioners
711WP848.16-Judgment 3/5
submits that as the said impugned order had lapsed by efflux of time, it
was incumbent on the Sub-Divisional Magistrate to remove the said
fencing and the board put up by the said Authority.
5. Learned Additional Public Prosecutor for the respondent
Nos.1 and 2 submits that after the impugned order dated 18/10/2016
was passed, the Sub-Divisional Magistrate put up a fencing and a board
to ensure that there was no disturbance to public tranquility. He
submits that after the ad interim protection was granted by this Court
vide order dated 27/10/2016, the Civil Court vide order dated
20/12/2016 passed in Regular Civil Suit No.7 of 2010, had directed the
parties to maintain status quo. The learned Additional Public
Prosecutor does not dispute the fact, that by efflux of time, the period of
two months had come to an end. He, however submits, that the
Sub-Divisional Magistrate cannot remove the fencing as well as the
board, in view of the order dated 20/12/2016 passed by the Civil Court
and hence, it would be appropriate to relegate the parties to the Civil
Court. Learned counsel for the respondent Nos.3 and 4 states that the
petitioners can file an appropriate application for removing the fencing
as well as the board installed by the Sub-Divisional Magistrate on
22/10/2016, pursuant to the order dated 18/10/2016.
711WP848.16-Judgment 4/5
6. Perused the papers. It is a matter of record that after the
impugned order dated 18/10/2016 was passed by the Sub-Divisional
Magistrate, Yavatmal, a fencing and board was put up by the said
Authority on the disputed land, on 22/10/2016 to prevent any
untoward incident. It is also not in dispute that the said order dated
18/10/2016 was in force only for a period of two months, in view of
section 144(4) of Criminal Procedure Code. Learned Additional Public
Prosecutor does not dispute the fact, that the said order was in force for
only two months i.e. till 18/12/2016 and that the authority is bound to
remove the said fencing and the board, after lapse of the said period.
He, however, submits that in view of the status quo order passed by the
Civil Court, the Sub-Divisional Magistrate would not be in a position to
remove the said fencing and board.
7. Considering the aforesaid, the petition can be disposed of
with the following directions:-
(i) In view of the order dated 20/12/2016 passed by the Civil
Court, it is open for the petitioners to file an appropriate application
before the Civil Court and seek appropriate orders for removing the
fencing and the board installed by the Sub-Divisional Magistrate,
711WP848.16-Judgment 5/5
Yavatmal, pursuant to the order dated 18/10/2016 passed under
section 144 of the Code.
(ii) If such an application for removing the fencing and board
is filed by the petitioners, the learned Civil Judge shall decide the said
application as expeditiously as possible and in any event within three
weeks from the date of filing of the said application, in accordance with
law.
Rule is made absolute in the aforesaid terms. There shall
be no order as to costs.
8. All the parties to act on the authenticated copy of this
judgment
JUDGE
KHUNTE
