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2009 DIGILAW 558 (GAU)

Rajani Goswami v. Anil Chandra Haloi

2009-08-11

T.NANDA KUMAR SINGH

body2009
T. Nandakumar Singh, J. - By this criminal petition under Section 482 read with Section 483 and Section 401 of the Code of Crminal Procedure, 1973 (for short CrPC), the petitioner is challenging the order of the learned Sessions Judge, Tinsukia dated 27.11.2008 passed in Criminal Revision No. 25 (2) of 2008, dismissing the revision petition filed by the petitioner and upholding the order of the learned Executive Magistrate, Margherita dated 16.05.2008 in Case No. 56 of 2007. 2. Mr. P. Bora, learned counsel appearing for the opposite party-respondent, at the outset, contended that the present criminal petition being the second revision petition, filed by the petitioner against the judgment of the learned Sessions Judge, i.e. impugned judgment dated 27.11.2008, upholding the order of the learned Executive Magistrate, Margherita dated 16.05.2008, is liable to be rejected at the threshold inasmuch as under Section 397 (3) of the CrPC the present petitioner, who had already filed a revision petition against the order of the learned ' Executive Magistrate dated 16.05.2008 before the learned Sessions Judge and the learned Sessions Judge also upheld the said order of the learned Executive Magistrate by the impugned order, cannot file the second revision petition before this Court. 3. Heard Mr. P. Kakati, learned counsel appearing for the petitioner as well as Mr. P. Bora, learned counsel appearing for the opposite party-respondent. 4. The fact of the petitioner's case, tersely put up in the present petition, by neglecting theunnecessary details, is recapitulated. The petitioner came into possession of the land measuring 2 Bighas covered by Dag No. 147 at No. 4 Makum Pathar, Mouja-Makum, District-Tinsukia, Assam and on 03.12.2000 the petitioner acquired the possessory right from Sri Atul Sharma, S/O. Late Tikeswar Sharma of Margherita T.E. by paying compensatory expenses to him vide deed dated 03.12.2000 signed by the owner. As the petitioner suffered from serious illness and for arrangement of his expenditure, he relinquished a part of the said land, i.e., the disputed land, measuring 1 Katha 10 Lechas in the North West portion in favour of the opposite party-respondent and as a result, the petitioner was left with 1 Bigha, 3 Kathas, 2 Lechas. When the petitioner visited the land on 17.06.2007, he found that his land was undisturbed and the fencing was in intact. When the petitioner visited the land on 17.06.2007, he found that his land was undisturbed and the fencing was in intact. However, on 17.07.2007 when he visited his land again he found that opposite party-respondent encroached the said land (hereinafter referred to as 'disputed land') belonging to the petitioner by removing the fencing. When the petitioner protested against the said illegal encroachment and wanted to enter into land, the opposite party-respondent violently resisted and threatened with dire consequences and forcefully disposed the petitioner from the disputed land. The petitioner filed an application for drawing up a proceeding under Section 145 of CrPC in respect of the disputed land against the opposite party-respondent and also for declaring possession of the disputed land in favour of the petitioner in the Court of the Sub-Divisional Magistrate, Margherita. 5. The learned Sub-Divisional Magistrate, Margherita called the report from the concerned O/C, i.e. the O/C of Margherita Police Station, as to whether there was imminent breach of peace as a result of the dispute in possession of the disputed land and the police submitted the report dated 22.07.2007 to the learned Sub-Divisional Magistrate, Margherita. The relevant portion of the report, which would be pertinent for deciding the present petition, is quoted hereunder :- "During enquiry, visited P.O. and found that one bamboo fencing north side of the house of 2nd party member which is allegedly entrance of 1 st party member. During enquiry, examined the 2nd party member who stated that the disputed land is under his occupation last eight years and paying revenue regularly. The 2nd party member also stated that, he purchased the land measuring 1 katha 10 lechas from the 1st party member land year @ Rs. 75,000/-(Seventy five thousand) only. During enquiry it is also learnt that both 1st and 2nd party members through Lot Mondal earmarked no boundary at the time of measuring the land. During course of enquiry it came to light that the 1st party member terrified with the 2nd party member. During enquiry it is learnt that both 1st and 2nd party members are in less talk but found no solution. Besides this it has come to notice that there is every possibility of breach of peace over the possession of disputed land. During enquiry it is learnt that both 1st and 2nd party members are in less talk but found no solution. Besides this it has come to notice that there is every possibility of breach of peace over the possession of disputed land. Considering the fact and circumstances noted above, I prayed to ask both the party member that Case under Section 107 CrPC as to why they should not be ordered to execute a bond for a period of one year for keeping good behaviour and notice to the both parties by fixing date. Both the party member will produce their documents in respect of disputed land as well as their witnesses to prove the case." 6. The learned Sub-Divisional Magistrate after receiving the said police report dated 22.07.2007 passed the preliminary order dated 27.07.2007 for drawing up the proceeding under Section 145 of CrPC asking both the parties to submit their written statement in support of their respective claims and also to produce the documents in support of their case and the learned Sub-Divisional Magistrate also ordered for attaching the said disputed land under Section 146 of CrPC asking both the parties not to enter into the disputed land until further order; the O/C, Margherita P.S. was directed to carry out the said order and report compliance. 7. The opposite party-respondent filed an application for vacating the said attachment order and after receiving the said application, the learned Magistrate called the report from the O/C, Margherita P.S. and the O/C, Margherita P. S. submitted the report that there is a dwelling house standing in the middle of the disputed land. The learned Magistrate after considering the said application, filed by the opposite party-respondent, for vacating the said attachment order and also the report of the O/C, Margherita P.S. dated 22.07.2007 passed the order dated 20.08.2007 vacating the said attachment order dated 27.07.2007, which reads as follows :- "20.8.07 - Both party present. 2nd party filed two petitions praying for a copy of 1st party's petition praying for vacating attachment order. After perusal of the petitions furnished by 2nd party it reveal that the 1st party has not furnished a copy of complaint petition to the 2nd party, hence the 1st party is asked to give a copy of the same to 2nd party. After perusal of the petitions furnished by 2nd party it reveal that the 1st party has not furnished a copy of complaint petition to the 2nd party, hence the 1st party is asked to give a copy of the same to 2nd party. It also reveals that (SIC) 2nd party's petition as well as police report dated 8.8.07 that a dwelling house stands on the middle of the disputed land for which O.C. Margherita P.S. could not carry out the order dated 27.7.07 under the above circumstances attachment order is hereby vacated. Inform all concerned. Fix-21.9.07. (Sd/- R. Mech) Learned Executive Magistrate Margherita." 8. On 16.05.2008, the petitioner did not appear in person before the learned Magistrate and submitted a petition by one Advocate praying for another date to adduce evidence on the ground that the petitioner was sick and his duly engaged counsel was also out of station. On 23.04.2008, the petitioner filed an application for correcting the typographical mistakes in his application filed before the learned Sub-Divisional Magistrate for drawing up the proceeding under Section 145 of CrPC and the said application was pending on 16.05.2008. The Sub-Divisional Magistrate on the very date, i.e-. on 16.05.2008 dropped the proceeding under Section 145 of CrPC basing on the earlier police report of the Margherita P.S. dated 22.07.2007, the relevant portion of which is quoted above, by passing the impugned order dated 16.05.2008, which reads as follows :- "16.05.08. Order 2nd party present and 1st party could not be present and submitted a prayer petition for absence. 2nd party submitted a written objection against the 1st party. Perused all paras. Self is also of the opinion that 1st party is trying to mislead the Court by submitting a written prayer on 23.4.08 that typographical error occurred etc. Also wasting time of the Court by not producing witness on the date fixed. Also from the petition self-observed that 2nd party has been in possession of the D/L since last 8 years as is revealed from the report of police. That's why the attachment order could not be executed. I hereby drop the case on the ground that 1st party is simply delaying the process of Court. The case hereby dropped. Sd/- Dipu Kr. Deka, Executive Magistrate, Margherita" 9. That's why the attachment order could not be executed. I hereby drop the case on the ground that 1st party is simply delaying the process of Court. The case hereby dropped. Sd/- Dipu Kr. Deka, Executive Magistrate, Margherita" 9. The petitioner being aggrieved by the impugned order of the learned Sub-Divisional Magistrate (learned Executive Magistrate), Margherita dated 16.05.2008 filed the revision petition being Criminal Revision Petition No. 25 (2) of 2008 in the Court of the learned Sessions Judge, Tinsukia. In the revision petition, the petitioner contended that the learned Magistrate had misled the petitioner by fixing the next date of the said proceeding under Section 145 of CrPC on 19.06.2008 for hearing and that the impugned order dated 16.05.2008 was never passed on that date but was passed later on behind the back of the petitioner before leaving Margherita on transfer and also that the Sub-Divisional Magistrate acted arbitrarily in passing the said order dated 16.05.2008 by ignoring the principles of natural justice. The learned Sessions Judge, Tinsukia, in the impugned judgment and order dated 27.11.2008 rejecting the Criminal Revision No. 25(2) of 2008, filed by the petitioner, made a finding that on 16.05.2008 one Advocate, namely, Smti. Manju Upadhaya, filed a petition praying for another date to adduce evidence on the ground that the petitioner was sick and his conducing counsel was out of station but that petition was not supported by any medical certificate and absence of the Advocate cannot be taken as just ground for adjournment. Basing only on this finding, the learned Sessions Judge was of the view that the impugned order of the learned Executive Magistrate dated 16.05.2008 for dropping the proceeding under Section 145 of CrPC is just and proper. Basing only on this finding, the learned Sessions Judge was of the view that the impugned order of the learned Executive Magistrate dated 16.05.2008 for dropping the proceeding under Section 145 of CrPC is just and proper. It is clear from the impugned judgment and order of the learned Sessions Judge dated 27.11.2008 dismissing the Criminal Revision No. 25(2) of 2008, filed by the petitioner, that the impugned order of the learned Executive Magistrate dated 16.05.2008 for dropping the proceeding under Section 145 of CrPC was not interfered with only on the ground that the application filed by the learned Advocate of the petitioner praying for another date for adducing evidence on 16.05.2008 was not supported by any medical certificate and, as such, the impugned order passed by the learned Magistrate dated 16.05.2008 is proper, in other words, the learned Sessions Judge did not decide the other grounds raised by the petitioner in the revision petition for assailing the impugned order dated 16.05.2008 passed by the learned Executive Magistrate for dropping the proceeding under Section 145 of CrPC. Hence, the present criminal petition. 10. Hence, the present criminal petition. 10. The present criminal petition is filed on the main, inter alia, grounds that (i) both the learned Court below had committed gross irregularities while passing the impugned orders and, as such, the impugned orders are not tenable in the eye of law; (ii) the learned Sessions Judge had committed the serious mis-carriage of justice in coming to his findings that since no medical certificate was enclosed along with the petition for adjournment and, as such, it could not be taken as a just ground for adjournment and as a result, the impugned order dated 16.05.2008 passed by the learned Executive Magistrate was proper; (iii) The learned Executive Magistrate had committed the gross irregularities and illegalities in passing the impugned order dated 16.05.2008 for dropping the proceeding under Section 145 of CrPC solely on the basis of the police report dated 22.07.2007 which only recorded the claim of the opposite party-respondent that they are in possession of the disputed land for the last eight years without following the procedure and manner contemplated in Section 145 (4) of CrPC for deciding the proceeding under Section 145 of CrPC and also without giving opportunity to put up the case of the petitioner; (iv) the gross error committed by the learned Executive Magistrate in passing the impugned order dated 16.05.2008 thereby causing mis­carriage of justice could be corrected and set aside by this Court in exercise of the supervisory power and jurisdiction under Section 483 read with Sections 482 and 401 of CrPC and (v) the provision under Section 397 (3) of CrPC will not be in the way of exercising the supervisory and plenary jurisdiction of the High Court under Section 482 read with Section 483 and 401 of CrPC for correcting the palpable mistakes committed by the learned Court below, i.e., the learned Executive Magistrate, which resulted to great injustice to the petitioner. 11. Mr. P. Bora, learned counsel appearing for the respondent strenuously contended that the present criminal petition is nothing but the second revision petition against the impugned judgment and order of the learned Executive Magistrate, Margherita dated 16.05.2008, as a result, the present criminal petition is barred by Section 397 (3) of CrPC. In support of his contention, Mr. Bora had placed heavy reliance on the decisions of the Apex Court in (i) Raj an Kumar Machananda Vs. In support of his contention, Mr. Bora had placed heavy reliance on the decisions of the Apex Court in (i) Raj an Kumar Machananda Vs. State of Karnataka, 1990 (Supp) SCC 132 and (ii) Dharampal & Ors. Vs. Ramshri (Smt.) & Ors. (1993) 1 SCC 435 , wherein the Apex Court held that the second revision petition, after dismissal of the first one by the Sessions Court, cannot be entertained by the High Court in exercise of its inherent power under Section 482 of CrPC. The Apex Court in Rajan Kumar Machananda case (supra) held that where a revision petition is dismissed by the Sessions Court, a second revision would not lie to the High Court. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397 (3) of the Code could be labelled as one under Section 482. The Apex Court in Dharampal case (supra) held that it is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of respondent 1. On this short ground itself, the impugned order of the High Court can be set aside. 12. To the contra, Mr. P. Kakati, learned counsel appearing for the petitioner strenuously contended that the ratio laid down in Rajan Kumar Machananda case (supra) and Dharampal case (supra) had been overruled by the larger Bench of the Apex Court (three Judges). The ratio laid down in Krishnan & Anr. Vs. Krishnaveni &Anr, (1997) 4 SCC 241 is, later on, followed by the Apex Court in Shakuntala Devi & Ors. Vs. Chamru Mahto & Am (2009) 3 SCC 310 . The ratio laid down in Krishnan & Anr. Vs. Krishnaveni &Anr, (1997) 4 SCC 241 is, later on, followed by the Apex Court in Shakuntala Devi & Ors. Vs. Chamru Mahto & Am (2009) 3 SCC 310 . From the ratio laid down by the Apex Court in the above cases, it clear that second revision petition by the same petitioner is barred by Section 397 (3) of CrPC but the same petitioner is not barred from approaching the High Court for correcting the palpable errors committed by the Court below, i.e. the learned Executive Magistrate in passing the orders and thereby resulting to great injustice to the petitioner by invoking the supervisory and plenary jurisdiction of the High Court under Section 482 read with Section 483 and 401 of CrPC over the proceedings and order of the Subordinate Court, i.e., the learned Executive Magistrate. 13. This Court is to see as to whether there are palpable errors and mistakes which are infraction of the prescribed procedure and manner for deciding as to who among the parties was in possession of the disputed land at the time of passing the preliminary order for drawing up the preliminary proceeding under Section 145 of CrPC in passing the impugned order dated 16.05.2008 by the learned Executive Magistrate which has been quoted above in full. On perusal of the impugned order dated 16.05.2008, it is crystal clear that the learned Executive Magistrate had dropped the proceeding under Section 145 of CrPC only on the basis of the police report dated 22.07.2007 which only recorded the statement/stand of the opposite party-respondent and also that no opportunity was given to the present petitioner to put up his case. 14. Section 145 (4) of CrPC mandates the Magistrate to peruse the statements so put up by the parties, hear the parties, receive all such evidence as may be produced by them and take such further evidence, if any or if necessary, for deciding whether and which of the parties was at the time of the order made by him under sub-section (1) of Section 145 of CrPC, in possession of the subject of dispute. For easy reference sub-clause (1) and (4) of Section 145 of CrPC are quoted hereunder :- "145. For easy reference sub-clause (1) and (4) of Section 145 of CrPC are quoted hereunder :- "145. Procedure where dispute concerning land or water is likely to cause breach of peace- (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under sub­section (1), in possession of the subject of dispute.............................." 15. In the given case, it is clear that the procedure and the manner contemplated in Section 145 (4) of CrPC for deciding whether and which of the parties was in possession at the time of passing the preliminary order, had been completely violated in passing the impugned order dated 16.05.2008 for dropping the proceeding under Section 145 of CrPC and the impugned order dated 16.05.2008 was passed in clear violation of the principles of natural justice and also was passed only on the basis of the claim of the opposite party-respondent recorded in the said police report dated 22.07.2007 without giving opportunity to the petitioner to put up his case as to the correctness or otherwise of the police report and as a result, great injustice had caused to the petitioner. 16. 16. The object of the introduction of Section 397 (3) of CrPC is to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge are not completely closed and in special case the bar under Section 397 (3) can be lifted. [Ref. observation of the Justice Altamas Kabir in Shakuntala Devi case (supra)]. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397 (1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or other is not correct, it is but the salutary duty of the High Court to prevent the abuse of process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order. [Ref. para 8 of the SCC in Krishnan case (supra)]. 17. Section 401 of the Code gives to every High Court the power of revision. Sub-section (1) of the said section provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386,389 and 391 and on a Court of Sessions by Section 307. Apart from the express power under Section 397(1), the High Court has been invested with suo moto power under Section 401 to exercise revisional power. Apart from the express power under Section 397(1), the High Court has been invested with suo moto power under Section 401 to exercise revisional power. In addition, Section 482 saves inherent powers of the High Court postulating that: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." Section 483 enjoins upon every High Court to so exercise its continuous superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates. It is, therefore, clear that the power of the High Court of continuous supervisory jurisdiction is of paramount importance to examine the correctness, legality, or propriety of any finding, sentence or order, recorded or passed as also regularity of the proceedings of all inferior criminal courts. [Ref. Para 6 of SCC in Krishnan case (supra)]. 18. In Madhu Limaye Vs. State of Maharashtra: (1977) 4 SCC 551 : 1978 SCC (Cri) 10, a three-Judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397 (2) of the Code. The Apex Court held that the bar on the power of revision was put in order to facilitate expedient disposal of the cases but in Section 482 it is provided that nothing in the Code, which would include Section 397 (2) also, shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction of the said two provisions in this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government had decided to prosecute the appellant for offence under Section 500 IPC. After obtaining the sanction, on a complaint made by the public prosecutor, cognizance of the commission of the offence by the appellant was taken to take trial in the Sessions Court. After obtaining the sanction, on a complaint made by the public prosecutor, cognizance of the commission of the offence by the appellant was taken to take trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that the court had no jusridiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on the maintainability, the Apex Court held that power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code. [Ref. Para 11 of SCC in Krishnan case (supra)]. 19. Para 3 and 14 of SCC in Krishnan case (supra) read as follows :- "3. When the matter had come up for hearing, upon consideration of decisions cited by the learned counsel for the appellants, in particular Dharampal Vs. Ramshri: (1993) 1 SCC 435 : 1993 SCC (Cri) 333 and Rajan Kumar Machananda Vs. State of Karnataka: 1990 Supp SCC 132 : 1990 SCC (Cri) 537, the matter was referred to a three-Judge Bench. Thus, the appeal has come up before us." "14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397 (1) read with Section 397 (3) and the inherent powers. We do not find any justification warranting interference in the appeal." 20. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397 (1) read with Section 397 (3) and the inherent powers. We do not find any justification warranting interference in the appeal." 20. The Apex Court in paras 22 and 24 in Shakuntala Devi Case (supra) held as follows:- "22. Mr. Kumar then submitted that the decision in Dayanand case (supra) relied upon by Mr. Sanyal had, in fact, been overruled in Krishnan case [ (1997) 4 SCC 241 ] and hence, reliance upon the judgment in Dayanand case could not be supported. Mr. Narendra Kumar urged that while considering its earlier decision in Dayanand case, this Court in the latter case of Krishnan (supra) had also observed that despite the bar of Section 397 (3) of the Code, the relief contemplated under Section 482 was still available, though it was required to be exercised sparingly. Mr. Narendra Kumar submitted that the High Court had rightly exercised its jurisdiction under Section 482 of the Code in order to do complete justice between the parties." "24. It is well settled that the object of the introduction of sub-section (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but', at the same time, the doors of the High Court to a litigant who had lost before the Sessions Judge were not completely closed and in special cases the bar under Section 397 (3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under sub-section (3) of Section 397 of the Code, and was capable of being invoked in appropriate cases. Mr. Sanyal's contention that there was a complete bar under Section 397 (3) of the Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us." 21. Mr. Sanyal's contention that there was a complete bar under Section 397 (3) of the Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us." 21. For the foregoing discussions, this Court, keeping in view of the ratio laid down by the Apex Court in Krishnan case (supra) and Shakuntala Devi case (supra), is of the considered view that this Court has the jurisdiction to entertain the present criminal petition under Section 482 read with Sections 483 and 401 of CrPC to prevent miscarriage of justice or to correct the irregularities of procedure to met out justice inasmuch as in the given case there has been failure of justice or misuse of judicial mechanism in passing the impugned order dated 16.05.2008 by the learned Executive Magistrate and also the impugned order dated 27.11.2008 passed by the learned Sessions Judge, Tinsukia in Criminal Revision No. 5 (2) of 2008. Accordingly, the impugned orders are set aside. The Case No. 56 of 2007 under Section 145 CrPC is remanded to the learned Executive Magistrate for de novo trial in accordance with law and the learned Executive Magistrate on receipt of the record shall issue notice to both the parties for de novo trial of the case. 22. With the aforesaid observations and directions, this criminal petition is allowed. The parties are to bear their own costs. Send down the lower court record to the concerned Court forthwith.