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2000 DIGILAW 901 (PAT)

Jireshwar Mahto And Another v. Mathura Singh

2000-07-20

D.N.PRASAD

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Judgment D.N.Prasad, J. 1. This Criminal Revision has been filed under Sec. 397 and 401 of the Criminal Procedure Code against the order dated 27.7.1998 passed by the 6th Additional District and Sessions Judge, Palamau at Daltonganj in Criminal Revision No. 42 of 1991 whereby and where under the learned Judge set aside the order for issuance of notice/show cause. 2. Short facts as alleged that the lands appertaining to plot No. 366 of Khata No. 110, area 19 decimals and plot No. 370, Khata No. 110 area 5 decimals of village Karar belonged to the recorded tenant of Hardutt Pathak and Ramdutt Pathak. The predecessors in interest of the petitioners purchased the said land by registered deed of sale dated 29.9.1931 from the successor of interest of Hardutt Pathak. This dispute also arose between Chandu Mahto and members of the opposite parties on the question of possession of the said land whereupon a proceeding under Sec. 145, Cr.P.C. was initiated and possession in favour of Chandu Mahto, father of the petitioners will declared by an order dated 18.5.1963 and the said order remained intact as no revision was filed on behalf of the opposite party. An application was filed on behalf of the petitioners before the Officer-in-charge that the members of opposite party Nos. 1, 2 and 3 are trying to dig a foundation for construction of a dwelling in place of jhopri. In view of the order dated 18.5.1963 the Sub-Divisional Magistrate ordered for issuance of notice/show cause by letter No. 579 dated 16.3.1991 but the opposite parties No. 1 and 2 without filing any show-cause before the Sub-Divisional Magistrate, Sadar, moved the District and Sessions Judge in revision being Numbered as Criminal Revision No. 42 of 1991 by which the learned Judge set aside the notice/show cause by the impugned order, hence this revision. 3. The learned Counsel appearing on behalf of the petitioners submitted that the learned Additional Sessions Judge committed error in setting aside the order for issuances of notice/show cause dated 16.3.1991 and the learned Curt below has wrongly come to the conclusion that the order dated 16.3.1991 under Sec. 145, Cr.P.C. has been issued under the New Code of Criminal Procedure rather Section 145(6) Cr.P.C. is same to the section of old Code as well as there is no mentioned in the notice that it is being sent under New Code. It is further argued that the order passed by the learned Judge is quite illegal and misconceived as well as simply a notice/show-cause was sent, the opposite party could have easily filed the show cause challenging all the points before the Sub-Divisional Magistrate and there was no final order of S.D.M. Sadar. It is further argued that the learned Magistrate has wrongly come to the conclusion that the said notice dated 16.3.1991 was issued under New Act and the order was passed declaring the possession of the petitioners under old Act. It is also argued that the order passed under Sec. 145, Cr.P.C. dated 18.5.1963 has never been challenged either through revision or through any other means and so the said order remained intact. 4. On the other hand, the learned Counsel appearing on behalf of the opposite party contended before me that there is no illegality in the impugned order and the learned Judge has rightly set aside the notice as the petition for issuance of notice was filed after 17 years of the order passed under 145, Cr.P.C. It is also submitted that the opposite party members are in possession of the said land and as such the said notice dated 18.3.1991 is legal. 5. Obviously, the possession was declared in favour of the petitioners in Case No. 162 of 1962 under Sec. 145, Cr.P.C. by order dated 18.5.1963 in respect of the land in question. It is trust that the application was filed much after passing of the said order and the order for issuance of notice was passed on. 16.3.1991. 6. Sec. 145(6) reads as follows: If the Magistrate decides that one of the parties was, or should under the proviso to Sub-sec. (4) be trusted as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to Sub-sec. (4) may restore to possession the party forcibly and wrongfully dispossessed. The old Criminal Procedure (sic) the same provisions was available and said section appears to be verbatim the same. (4) may restore to possession the party forcibly and wrongfully dispossessed. The old Criminal Procedure (sic) the same provisions was available and said section appears to be verbatim the same. Moreover, there is no mention in the order dated 16.3.1991 (Annexure-2) that this order has been passed or issued under New Code of Cr.P.C. 7 Thus, the learned Judge has wrongly passed the order that the order/notice dated 16.3.1991 under Sec. 145, Cr.P.C. has been issued under New Code of Criminal Procedure. Moreover, the opposite party could have easily challenged the said order/notice by filing show cause in the Court of S.D.M. Sadar but instead of taking such step, they preferred the revision and the learned Judge without appreciating the legal position, set-aside the order/notice dated 16.3.1991 which is quite illegal. It is true that the possession of the petitioner was declared under Sec. 145, Cr.P.C. as back as in the year 1963 and such petition was filed after some delay. Merely delay in filing the petition will not be sufficient to threw away the order/notice without hearing both sides on the point. The learned lower Court set aside the order dated 16.3.1991 holding that the said order/notice was issued under New Code of Criminal Procedure which is not correct position and the order passed in Cr. Revision No. 42 of 1991 is illegal and mis-construed. 8. Having considered all the facts and circumstances, it is evident that the impugned order suffers from illegality which required to be enter passed. Thus, I find merit in the application which is accordingly allowed. The order dated 23.7.1998 is hereby set aside.