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2009 DIGILAW 831 (PAT)

Jamuna Prasad Sinha v. State Of Bihar

2009-06-25

ABHIJIT SINHA

body2009
JUDGEMENT 1. The first party in a proceeding under Section 145 Cr.P.C. being M.R. Case No. 571 of 2003 have prayed for the quashing of the order dated 6.11.2006 passed therein by Sri Lalit Narayan Dubey, Executive Magistrate, Rosera, whereunder he added the State of Bihar as a party to the proceeding as also order dated 29.12.2006 passed by Sri Birendra Kumar, Sessions Judge, Samastipur, in Cr. Misc. No. 152. 2. It appears that on the basis of a police report dated 25.8.2003, a proceeding under Section 144 Cr.P.C. being M.R. No. 571 of 2003 was initiated and both parties appeared and filed their respective show cause alongwith relevant documents. Subsequently, the said proceeding was converted into a proceeding under Section 145 Cr.P.C. The said proceeding was finally disposed of on 1.3.2005 wherein the Sub- Divisional Magistrate found the possession of the petitioners over 4 kathas of land of the disputed plot and he permanently restrained the second party from interfering with the peaceful possession of the petitioners over the said 4 kathas of land. The second party preferred Cr. Revision No. 147 of 2005 on the ground that no details of the said 4 kathas of land and their location had been given in the said order of the learned Magistrate. The said revision was allowed by order dated 24.8.2006 and setting aside the order the learned Sessions Judge directed the learned Magistrate to give opportunity to the petitioners to cross- examine the witnesses produced by the first party and that the proceeding should be concluded within three months and the matter was remitted back to the Sub-Divisional Magistrate. It further appears that on 16.10.2006 the second party filed a petition before the Magistrate to implead the State of Bihar as a party to the proceeding and notwithstanding the objection raised by the first party and the case pending in the personal file of the Sub-Divisional Magistrate, on 6.11.2006 Sri Lalit Narayan Dubey, Executive Magistrate, Rosera, allowed the petition of the second party Cr. Revision No. 152 of 2006 was preferred against the said order which was dismissed by Sri Birendra Kumar, the learned Sessions Judge vide his order dated 29.12.2006 on the ground that the said order was an interlocutory order which would not affect any substantial right of the parties. 3. Revision No. 152 of 2006 was preferred against the said order which was dismissed by Sri Birendra Kumar, the learned Sessions Judge vide his order dated 29.12.2006 on the ground that the said order was an interlocutory order which would not affect any substantial right of the parties. 3. Assailing the impugned orders of the courts below, it was submitted on behalf of the petitioners that the petitioners of the present application have claimed only 4 kathas of land in their exclusive possession and the State of Bihar has no concern with the same, and as such, there was no requirement at all to add the State of Bihar as a party to the lis. The bona fides of the order of the learned Magistrate, Sri Dubey, has also been questioned on the ground that he not being in seisin of the case was not competent to dispose of the petition filed for adding the State of Bihar as a party to the litigation. It has next been submitted that the lands in question being homestead land of the petitioner on which Pacca house, Sahan and garden of the petitioners are situated and in that view of the matter, no proceeding under Section 145 Cr.P.C. was maintainable. In support of the submissions reliance was placed on the decision of Dilip Poddar V/s. State of Bihar, reported in 2001(3) PLJR 471 . 4. Reliance of the learned counsel for the petitioners on the decision of Dilip Poddar (supra) is not applicable to the instant case since in Dilip Poddars case, the proceeding under Section 145 Cr.P.C. was in respect of a fight between the parties regarding right of residential house only. This is not the situation in the instant case as apart from the pacca house referred to there is also Sahan and garden which is involved in the proceeding. Therefore, in my opinion, the decision of Dilip Poddars case (supra) does not come to the rescue of the petitioners. That apart, this point cannot be raised now since the petitioners did have the opportunity of raising the same in the earlier Cr. Revision No. 147 of 2005 and as it appears the same was never raised. Not having raised the issue in the earlier revision the petitioners cannot be permitted to raise the issue in this application. 5. That apart, this point cannot be raised now since the petitioners did have the opportunity of raising the same in the earlier Cr. Revision No. 147 of 2005 and as it appears the same was never raised. Not having raised the issue in the earlier revision the petitioners cannot be permitted to raise the issue in this application. 5. So far as the question of adding the State of Bihar as a party to the proceeding is concerned, it is clear from the order of the learned Magistrate regarding the necessity of adding the State of Bihar as a party thereto and I see no scope to differ from the order since reasons assigned by the learned Magistrate are cogent enough. 6. Now regarding the jurisdiction of Sri Lalit Narayan Dubey passing the impugned order the finding of the learned Sessions Judge that the order is interlocutory also appears to be correct. Addition of the State of Bihar as a party to the litigation, in my opinion, does not substantially affect the right of any of the parties and as a matter of fact would be a vital factor in judiciously disposing of the dispute involved in the proceeding concerned. 7. Sub-section (2) of Section 397 Cr.P.C. prohibits any exercise of the powers of revision in interlocutory orders. Admittedly, the expression interlocutory order" has not been defined in the statute it is now well settled that in deciding whether an order challenged is interlocutory or not in the light of Section 397(2) Cr.P.C. the sole test is whether such order was passed during the interim stage and whether by upholding the objection raised by a party it would result in culminating the proceeding. Gainful reference may be made to the case of Amar Nath V/s. State of Bihar, ( AIR 1977 SC 2185 ), Madhu Limaye V/s. State, ( AIR 1978 SC 47 ), K.K. Patel V/s. State of Gujarat, (2000)6 SCC 195 and Bhaskar Industries Ltd. V/s. Bhiwani Denim, reported in (2001)SCC 401. 8. In view of the discussions made in the foregoing paragraphs I find no apparent reason to interfere with the orders impugned. Accordingly, there being no merit in this application, the same is dismissed.