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2002 DIGILAW 614 (ORI)

JAHAN ROUT v. ANANDA KISHORE DAS

2002-09-23

P.K.TRIPATHY

body2002
ORDER P.K. Tripathy, J. - This case is taken up out of turn from the weekly admission list on the request of learned Counsel for the Petitioners and on consent of learned Counsel appearing for the opposite party. 2. Heard. 3. The Second party members 5 to 14 in Criminal Misc. Case No. 10 of 1997 of the Court of Executive Magistrate, Nimapara are the Petitioners in this Criminal Revision. That is a proceeding u/s 145 Code of Criminal Procedure. In that proceeding, on 7.11.2000, learned Executive Magistrate declared possession in favour of the Petitioners and as against that the first party/opposite party No. 1 preferred Criminal Revision No. 10 of 2001 in the Court of Sessions Judge Puri. Learned Sessions Judge, after hearing the parties set aside the order passed by the learned Executive Magistrate on the ground that after adding the present Petitioner as the second party members, the first party was not allowed to adduce his evidence and therefore, learned Executive Magistrate committed an illegality. 4. Learned Counsel for the Petitioners argues that when the first party/opposite party No. 1 was aware of the case of the Petitioners and did not volunteer to adduce further evidence, therefore, learned Sessions Judge should not have set aside the order of the Magistrate. After perusal of the L.C.R. and hearing learned Counsel, this Court finds no force in that contention inasmuch as Petitioners were not only added as second party but also they were allowed to file separate written statement and ail such events occurred after closer of the evidence from the side of the first party. Under such circumstance first party should have been allowed opportunity to adduce further evidence, if any, to meet with the case advanced by the present Petitioners. Not only the provision of law but also the principle of natural justice demand such a procedure to be followed. That having not been done by the learned Executive Magistrate, learned Sessions Judge was right in his approach in passing the impugned judgment. Therefore, this Court finds no reason to interfere with the order of learned Sessions Judge, Puri. 5. Be that as it may, on receipt of the case on remand learned Executive Magistrate shall hear and dispose of the case on its own merit and on the basis of proper assessment of evidence on record. Therefore, this Court finds no reason to interfere with the order of learned Sessions Judge, Puri. 5. Be that as it may, on receipt of the case on remand learned Executive Magistrate shall hear and dispose of the case on its own merit and on the basis of proper assessment of evidence on record. It must be borne in mind by him that duty caste him is to find out which of the parties was in possession of the case land on the date of preliminary order or two months prior that, as the case may be. Let the inquiry be conducted by him by affording further opportunity of adducing evidence by the first party and rebuttal evidence, if any by the second party members including the present Petitioners and dispose of the case in accordance with law expeditiously and as far as practicable within a period of six months from the date of receipt of a copy of this order along with the L.C.R. Criminal Revision is disposed of accordingly. Send back the L.C.R. to the Court below immediately along with a copy of this order.