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2002 DIGILAW 1330 (RAJ)

Ramkishore Das v. State of Rajasthan

2002-07-30

A.C.GOYAL

body2002
JUDGMENT 1. . - This S.B. Criminal Revision Petition is directed against the order dated 2.11.2000 passed by learned Additional Sessions Judge, Baran, whereby the order dated 2.8.2000 passed by Sub- Divisional Magistrate, Baran was set aside and the case was remanded with a direction that both the parties would be allowed opportunity to produce evidence and thereafter the Magistrate would pass fresh order according to law. 2. The relevant facts in brief are that S.H.O. Police Station Mangrol filed a complaint before Sub-Divisional Magistrate, Baran with the averments that 10 bighas land is situated in village Bhatwada. This land was in the name of Ma, araj Jagannath Das. After the death of Maharaj Jagannath Das, Shri Ramkishore Das (petitioner No. 1) before this Court was entrusted the management of this land. Since Shri Ramkishore Das was residing at Kanpur, some villagers appointed Sadhu Shyam Das (respondent No. 2) in this revision to look after this land. But in view of doubtful activities of Sadhu Shyam Das, another group of the villagers stood against him and thus a dispute has arisen between the two groups of the village. Therefore, to maintain the peace in the village necessary orders with regard to this land should be passed. 3. On the day of filing this application i.e. 31.5.1993 learned Sub-Divisional Magistrate appointed the Administrator of Gram Panchayat, Bhatwada as a Receiver. A Criminal Revision No. 3 / 94 was filed against this order. Learned Sessions Judge, Baran allowed this revision vide order dated 6.5.1994 and the case was remanded. 4. Thereafter, the Magistrate asked concerned parties to produce evidence. Five affidavits were filed on behalf of Shri Ramkishore Das and eighteen affidavits were filed on behalf of Shri Sadhu Shyam Das alongwith some documents. It is also borne out from the record that Shri Ramkishore Das appointed Shri Ramcharan Meena (petitioner No. 2) in this revision as his Power of Attorney Holder. 5. Learned Magistrate after hearing learned Counsel for the parties came to this conclusion that according to Jamabandi this land was recorded in the name of Thakurji and name of the Ramkishore Das was entered as Manager of this land. 5. Learned Magistrate after hearing learned Counsel for the parties came to this conclusion that according to Jamabandi this land was recorded in the name of Thakurji and name of the Ramkishore Das was entered as Manager of this land. It was also observed that in a Civil Case No. 17/1993 titled as Sadihu Shymn Das v. Administrator, Gramt Panchayat and Ors., learned Munsiff vide order dated 18.2.1994 decided against Sadhu Shyam Das and in favour of the petitioners and thus cane to this conclusion that this land was in possession of Ramkishore Das. Hence, the possession may be given to Ramkishore Das through his Power of Attorney Holder, Ramcharan Meena. Criminal Revision No. 4/ 2000 filed by Sadhu Shyam was allowed by learned Additional Sessions Judge, Baran vide order dated 2.11.2000 as stated hereinabove. Hence, this revision before this Court. 6. Learned Counsel for the petitioners contended that the order dated 2.11.2000 is illegal because both the parties submitted their affidavits in accordance with Section 145(4), Cr.P.C. and there was no prayer on the part of non-petitioner Sadhu Shyam Das that he should be allowed to cross-examine the deponents, reliance is placed upon Babulal and Anr. v. Kishna Ram and Ors., WLN (UC) 1974 pg. 50 , wherein it was held that in proceedings under Section 145, Cr.P.C. It was open to the applicants to make a request to the learned Magistrate for calling the deponent for cross-examination. No such request was made and thus no complaint on that basis can be made later on and appreciation of evidence is not permissible in revision. In the instant case, both the parties submitted their affidavits and at no point of time, the non-petitioner Shri Sadhu Shyam Das made any prayer for cross-examination. Therefore, the observation of the learned Additional Sessions Judge that evidence was not recorded is contrary to the record. It was contended that oral evidence should have been allowed and the order dated 2.11.2000 based upon affidavits was not lawful. This contention cannot be accepted as there was no payer that oral evidence should be allowed and further there was no prayer that cross-examination on affidavits should be allowed. It was contended that oral evidence should have been allowed and the order dated 2.11.2000 based upon affidavits was not lawful. This contention cannot be accepted as there was no payer that oral evidence should be allowed and further there was no prayer that cross-examination on affidavits should be allowed. Learned Counsel for the petitioners further contended that civil suit was pending between the parties and the learned Munsiff vide order dated 18.2.1994 rejected the application filed by Sadhu Shyam Das for temporary injunction, and therefore, criminal proceedings under Section 145, Cr.P.C. were not maintainable. Reliance is placed upon Ram Sumer Puri Mahant v. State of U.P. and Ors., AIR 1985 SC 472 . 7. I have gone through the order dated 18.2.1994 passed by learned Munsiff, Mangrol in an application filed under Order 39 Rules 1 and 2, CPC. This application was filed by Sadhu Shyam Das against Administrator, Gram Panchayat and others including Ramkishore Das and the learned Munsiff observed that no prima facie case is made out in favour of Sadhu Shyam Das. Therefore, in view of the judgment of Hon'ble Supreme Court supra this contention is also accepted and there was no justification for the learned learned Additional Sessions Judge, Baran to remand the case. 8. Consequently, this revision petition is allowed and the impugned order dated 2.11.2000 is set aside.Revision Petition allowed. *******