The court held that proceedings under Section 107 of the Criminal Procedure Code were unwarranted after a prior determination of possession under Section 145, emphasizing the distinct purposes of each section.

JUDGEMENT :

1. Rule.

2. Rule is made returnable forthwith.

3. Heard parties with consent for final disposal at the admission stage.

4. The Petitioner filed the present petition challenging the order dated 18/10/2023 passed by the Deputy Collector/Sub Divisional Magistrate at Quepem under Section 117 read with 107 of Criminal Procedure Code (Cr.P.C. for short) and accordingly, directed the Petitioner/Party No. 2 therein that the bond submitted shall be furnished and till then the Party No. 2 shall be in judicial custody.

5. Mr. Desai would submit that first of all the proceedings initiated by Respondent No. 2 under Section 107 of Cr.P.C. are not at all maintainable as in the year 2009 itself, the case under Section 145 of Cr.P.C. was filed and decided in favour of the Petitioner by holding that the Petitioner is in possession of the property including the management of the religious place which is called as ‘Dargah’ of Pir Goa/Babar Pir situated in survey No. 43/22 of Quitol Village of Quepem Taluka. He would submit that such order was challenged before this Court in WPCR 402/2022(F) and vide order dated 06/09/2022, the said petition was disposed of. He submits that the Private Respondents are therefore, not entitled to claim possession over the said Dargah including the Sanctum Sanctorum which is in possession of the Petitioner including the management of the said Dargah. He would submit that the order passed by the Sub Divisional Magistrate (SDM for short) in the year 2009 and confirmed in the year 2023 remains in operation till the dispute is decided by a Civil Court. He submits that the Petitioner vide his letter only informed the concerned authorities that in view of the forthcoming festival/celebration, there is a possibility that the Respondents can create some disturbance and accordingly, Police Protection should be provided however, instead of acting upon such letter, the SDM initiated the proceedings under Section 107 of Cr.P.C., though it was not necessary and asked the parties to execute the bonds.

6. Mr. Desai would submit that even though enquiry was conducted and it was pointed out to the SDM that the management as well the possession of the Dargah is with the Petitioner, he forfeited the bond while passing the impugned order which is arbitrary, unwarranted and requires to be quashed and set aside.

7. Per contra, Mr. Monteiro appearing for the Respondent Nos. 4 and 8 while supporting the impugned order would submit that the Petitioner is in the habit of locking the sanctum sanctorum and preventing the Devotees from entering into the said area to perform their religious rites. He submits that though an order was passed by the SDM in the year 2009, the Petitioner had no authority to lock the said sanctum sanctorum. He submits that the Respondents intimated the SDM that there is a possibility of breach of peace due to such act of the Petitioner, and accordingly, the matter was initiated and bonds were executed, however, Petitioner by locking the gate created a situation where there is a threat of breach of peace and tranquillity in the area and therefore, order passed by SDM cannot be faulted with.

8. Mr. Karpe appearing for Respondents 1, 2 and 3 while supporting the contentions raised by other Respondents submits that the proceedings under Section 107 are permitted to be invoked even though earlier orders are passed under Section 145 of Cr.PC He submits that recently there was situation where possibility of breach of peace was eminent and thus, action of Respondent No. 2 cannot be faulted with.

9. Rival submissions would now fall for consideration.

10. It is a matter of record that dispute between Petitioner and the other Private Respondents is going on from the year 2009, itself. Dargah is situated in private property and since there was an issue of breach of peace in connection with possession of the said Dargah, proceedings were initiated before the SDM/South Goa, Quepem vide case No.MAG/145/1/2009/2508. In that matter t