S.S.Sandhawalia, 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 Sec.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 Sec.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 Sec. 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 Sec.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