The Sub-divisional Officer had no jurisdiction to pass the order under Section 144 of the Criminal Procedure Code, as there was no apprehension of a breach of the peace and the provisions of the section did not authorize the seizure of the truck and its delivery to the opposite party.

Sinha, J.

1. This is an application for setting aside the order of the Sub-divisional Officer of Buxar, dated the 6th/7th October, 1951, and for restoration of a truck numbered BRA 4720 which was seized by the police of Buxar under orders of the Sub-divisional Officer and made over to the opposite party in the circumstances to be presently mentioned.

2. The petitioner Indrasan Rai of village Arjun-pore, police station Buxar, claims to be the owner of the truck mentioned above which, according to him he had purchased from the Liberty and Company, Patna, sometime in the month of March 1951. It is alleged that Enayat and Ayub, son of Enayat, the opposite party, were the two karpar-daas of the petitioner looking after the affairs of the petitioner at home including the construction of a pucca house. The truck was employed in carrying bricks, sand, etc., to the petitioners house and was always in his possession. The petitioner discovered on the 15th September 1951, that the opposite party had practised fraud upon the petitioner and had without his knowledge dishonestly got the truck registered in Ayubs name (one of the opposite party) and that the opposite party had a sinister design to misappropriate the truck. After the petitioner came to know of the dishonest design of the opposite party, the opposite party, to advance their fraudulent purpose, lodged a saneha at the Buxar police station on the 17th September 1951, to the effect that there was a quarrel between Indrasan Rai on the one hand and one Abdul Wahid Khan, the driver of the truck, on the other, for arrears of hire and thereupon the petitioner grew angry and was ready to create trouble and that, out of fear, Wahid Khan, left the truck with some papers concerning the truck near the house of Indrasan Rai. In the saneha the opposite party claimed to be the ower of the truck. On the 19th September, 1951, Ayub Khan filed a petition before the Sub-divisional Officer under Sec.144, Criminal Procedure Code, and therein referred to the contents of the saneha lodged on the 17th September. One of the paragraphs in the said petition runs as follows :

"That the S.I., Buxar after lodging, saneha went to the spot and made enquiry but the said Indrasan Rai and his son Ramakant Rai have not allowed the truck to be taken to the P. S., and is even ready to commit breach of peace."

And the prayer portion ran as follows :

"It is, therefore requested that your honour would be pleased to kindly direct the Section I., to take the truck into his custody at once and be further pleased to release the same to the petitioner and for this the petitioner shall ever pray.

3. On the 19th September 1951, the order-sheet shows : "To local police for enquiry and report by 25-9-1951." On the 22nd September time till 1-10-1951, was allowed to the petitioner, who was the opposite party to the application under Sec.144, for production of documents relating to the truck. On the 1st October 1951, the report of the Police was not receivedi but the parties were heard, and the learned Sub-divisional Officer made the following order :

"Ask the S.I., Police to send the truck subject-matter of dispute -- to the Fort for custody till such time as the matter is disposed of. Put up on 6-10-1951 or earlier if the S.I. submits report."

According to the order-sheet, on 6th/7th October 1951, the learned Sub-divisional Officer, Mr. Saran Singh, passed the following order :

"Action of the second party (viz., the petitioner before this Court) in wrongfully detaining the truck speaks of utter disregard of law. The flrst party is the real owner and is allowed to take the vehicle, Further interference by second party will be visited with stern action,"

and later on the same date the second party was directed to deliver the key of the truck for its being handed over to the first party. On the very day on which this order was passed, an application was made by the petitioner to the learned Sub-divisional Officer for staying