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2010 DIGILAW 430 (GAU)

Misba Al Achil Hazarika v. Hasmot Ali Hazarika

2010-06-15

H.N.SARMA

body2010
JUDGMENT H.N. Sarma, J. 1. Being aggrieved by the order dated 28.5.2009 passed by the learned Additional District & Sessions Judge, Lakhimpur, North Lakhimpur, in Criminal Motion No. 20(3)/08 allowing to incorporate the order dated 15.9.2008 by way of amendment of the original revision petition filed by the 2nd party-Respondent, the Petitioner has filed this revision petition. 2. I have heard Mr. T.J. Mahanta, learned Counsel for the Petitioner and Mr. B. Ullah, learned Counsel for the Respondent. 3. An application praying for taking necessary action Under Section 144, Code of Criminal Procedure was filed by the Petitioner in the court of the learned Additional District Magistrate, Lakhimpur, North Lakhimpur, which was registered as Misc. Case No. 25/06, the learned Magistrate vide order dated 19.7.2006 on being satisfied, passed an order issuing notice to both the parties with an interim order restraining both the parties. Later on proceeding was converted to that of Under Section 145, Code of Criminal Procedure and the learned Magistrate directed the parties to file written statement and as an interim measure also attached the disputed land in exercise of power Under Section 146(1), Code of Criminal Procedure vide order dated 19.7.2006. Thereafter, the learned Magistrate proposed to conduct a legal enquiry of the disputed property on 27.8.2008 and accordingly local enquiry was conducted. Thereafter, the learned Magistrate vide order dated 10.9.2009, the building which is standing on the disputed land was locked and the key was taken by him. 4. Challenging the order dated 19.8.2008 and 10.9.2008 passed in the proceeding, 2nd party-Respondent filed Criminal Motion No. 20(3)/08 in the court of the learned Additional District and Sessions Judge, Lakhimpur, North Lakhimpur on 24.9.2008. During the pendency of the proceeding of the said revision petition, Additional Deputy Commissioner, North Lakhimpur passed an order in the proceeding on 15.9.2008 allegedly in the absence of the 2nd party directing police to handover the key of the locked building to the 1st party. At this, the 2nd party-Respondent filed an application in the said Criminal Motion No. 20(3)/08 on 4.3.2009 praying for including the order dated 15.9.2008 in the original revision petition as an impugned order. The learned Magistrate considered the prayer of the 2nd party to include the order dated 15.9.2008 along with the orders dated 19.8.2008 and 10.9.2008 in the said criminal motion and directed the 2nd party to file amendment petition accordingly. The learned Magistrate considered the prayer of the 2nd party to include the order dated 15.9.2008 along with the orders dated 19.8.2008 and 10.9.2008 in the said criminal motion and directed the 2nd party to file amendment petition accordingly. Challenging the aforesaid impugned order dated 28.5.2009 passed in Criminal Motion No. 20(3)/08 the present Petitioner-1st party filed the present petition. 5. Mr. T.J. Mahanta, learned Counsel; for the Petitioner has urged the only point that the revisional court has no power to direct amendment the revision petition, nor the Code of Criminal Procedure provides any such power to amend a revision petition. In that view of the matter, the inclusion of the impugned order allowing to incorporate the order dated 15.9.2008 in the criminal motion with direction to amend the revision petition is wholly without jurisdiction. 6. Mr. B. Ullah, learned Counsel for the 2nd party-Respondent referring to the power confer Under Section 386(a) of the Code of Criminal Procedure submits that, such a power is also available to a revisional court to make necessary amendment and accordingly the impugned order requires no interference. He further submits that the revisional court having found it necessary to examine the order dated 15.9.2008 in order to effectively decide the revision petition has allowed to incorporate the said order by way of amendment and thereby no prejudice is caused to the Petitioner when the said order of inclusion is necessary for the ends of justice and as such it requires no interference. 7. I have considered the rival submission of the learned Counsel for the parties. The learned revisional court in passing the impugned order has made a reference to the provision contained Under Section 386(e) of the Code of Criminal Procedure On a bare reading of the said provision discloses that the said provision does not provide any power to amend (sic) upon revisional court to amend the revision petition. Section 386(e) is totally on a different context which does not provide the power upon the revisional court for amendment. However, a close scrutiny of the impugned order discloses that the revisional court considered the manner and method in which the order dated 15.9.2008 was passed. The learned revisional court was of the opinion that, in order to arrive at the just and proper decision in the revision petition, scrutiny of the subsequent order dated 15.9.2008 is necessary. However, a close scrutiny of the impugned order discloses that the revisional court considered the manner and method in which the order dated 15.9.2008 was passed. The learned revisional court was of the opinion that, in order to arrive at the just and proper decision in the revision petition, scrutiny of the subsequent order dated 15.9.2008 is necessary. It is also found by the learned court that in the absence of the said order, the Petitioner may be prejudiced in the revision petition, and on such consideration, the learned court allowed to incorporate the order dated 15.9.2008 along with the other orders, i.e., order dated 19.8.2008 and 10.9.2008 passed by the Addl. Deputy Commissioner, North Lakhimpur in Misc. Case No. 25/06 filed Under Section 145 of Code of Criminal Procedure. 8. The Code of Criminal Procedure do not provide any express provision to amend the revision petition. Under Sections 397 and 399 Code of Criminal Procedure, any court of Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding or order as to regularity of the proceeding. The learned Sessions Judge may call for the record of any proceeding by himself suo motu. He may exercise all or any of the powers which may be exercised by the High Court Under Sub-section (1) of Section 401, Code of Criminal Procedure Under Sub-section (1) of Section 401, Code of Criminal Procedure, the power of the appellate court as provided Under Sections 386, 389, 390 and 391 or on a Court of Sessions Under Section 307 can be exercised by the revisional court. 9. The aforesaid provisions of the Code of Criminal Procedure empowers a Session Judge to exercise the power of revision without any application by the aggrieved party. The purpose of calling upon the proceeding from the inferior criminal court within its jurisdiction is to examine the correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of the proceeding as conducted by the inferior court. 10. The purpose of calling upon the proceeding from the inferior criminal court within its jurisdiction is to examine the correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of the proceeding as conducted by the inferior court. 10. In view of the aforesaid discussions, a revisional court is empowered for calling the record suo motu for examining the correctness of the order dated 15.9.2008 and also to examine the correctness, legality or propriety or regularity of the proceeding conducted by the learned Magistrate. The learned Addl. District & Sessions Judge has got the jurisdiction to examine and scrutiny the correctness, legality and validity of the order dated 15.9.2008 as well as regularity of the proceeding, even without any amendment and for that purpose, amendment of the revision petition is not necessary. It is based only on the satisfaction of the learned court and such satisfaction has been expressed by the learned revisional court. The finding arrived at in the impugned order as regards the proposition to examine the subsequent order dated 15.9.2008 cannot be said to be without jurisdiction. However, the direction of the learned court that the 2nd party-Respondent should file necessary amendment to amend the revision petition is beyond the provision of the Code and that cannot be sustained. 11. In view of the above discussion, I do not find any merit in the petition so far it relates to the examination of the order dated 15.9.2008. The learned Addl. District & Sessions Judge is directed to call for the records from the court of the Addl. Deputy Commissioner and dispose of the Criminal Motion as early as possible revising the impugned order including the order dated 15.9.2008. 12. With the aforesaid observations and directions, the criminal petition stands disposed of.