JUDGMENT T. Nandakumar Singh, J. 1. Heard Mr. P. Upadhyay, learned Counsel for the Petitioner (first party) and Mr. R. Hazarika, learned Counsel for the Respondent (second party). 2. This Court in a number of cases held that power of this Court under Section 482 Code of Criminal Procedure cannot be curtailed by the provisions of Section 397(3) Code of Criminal Procedure inasmuch as this Court, if considered that there is glaring error on the face of the record and injustice is likely to be caused, because of the glaring error, to the concerned Petitioner, can still exercise power under Section 482 of the Code of Criminal Procedure. 3. On perusal of Section 482 Code of Criminal Procedure it is clear 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. It is also fairly well settled that Court shall exercise the power under Section 482 Code of Criminal Procedure in rare cases. This Court in Rajani Goswami v. Anil Chandra Haloi: 2009 (4) GLT 279 (incidentally myself) had discussed the maintainability of the second revision petition under Section 482 Code of Criminal Procedure against the order of the learned Executive Magistrate for dropping the proceeding under Section 145 Code of Criminal Procedure without giving opportunity to the 1st party (Petitioner) and held that the power under Section 482 Code of Criminal Procedure could be exercised if refusal to exercise such power would cause miscarriage of justice and in such case the second revision petition is maintainable. Para 10, 11, 12, 14 and 15 of the GLT in Rajani Goswami's case (supra) read as follows: 10. Para 10, 11, 12, 14 and 15 of the GLT in Rajani Goswami's case (supra) read as follows: 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 miscarriage of justice in coming to his findings that since no medical certificate was enclosed along with the petition for adjournment, it could not be taken as a just ground for adjournment and as a result, the impugned order dated 16.05.08 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 16.5.2008 for dropping the proceeding under Section 145 of Code of Criminal Procedure solely on the basis of the police report dated 22.7.07 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 Section145(4) of Code of Criminal Procedure for deciding the proceeding under Section 145 of Code of Criminal Procedure 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 16.5.2008 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 Code of Criminal Procedure and (v) the provision under Section 397(3) of Code of Criminal Procedure will not be in the way of exercising the supervisory and plenary jurisdiction of the High Court under Section 482 read with Section483 and 401 of Code of Criminal Procedure 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 16.5.08, as a result, the present criminal petition is barred by Section 397(3) of Code of Criminal Procedure. 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 16.5.08, as a result, the present criminal petition is barred by Section 397(3) of Code of Criminal Procedure. In support of his contention, Mr. Bora had placed heavy reliance on the decisions of the Apex Court in (i) Rajan Kumar Machananda v. State of Karnataka 1990 (Supp.) SCC 132 and (ii) Dharampal and Ors. v. Ramshri(Smt.) and 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 Code of Criminal Procedure. 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 labeled as one under Section482. 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 utilized 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 and Anr. v. Krishnaveni and Anr. (1997)4 SCC 241 is, later on, followed by the Apex Court in Shakuntala Devi and Ors. v. Chamru Maahto and Anr. (2009) 3 SCC 310 . The ratio laid down in Krishnan and Anr. v. Krishnaveni and Anr. (1997)4 SCC 241 is, later on, followed by the Apex Court in Shakuntala Devi and Ors. v. Chamru Maahto and Anr. (2009) 3 SCC 310 . From the ratio laid down by the Apex Court in the above cases, it is clear that second revision petition by the same Petitioner is barred by Section 397(3) of Code of Criminal Procedure 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 Code of Criminal Procedure over the proceedings and order of the Subordinate Court, i.e. the learned Executive Magistrate. 14. Section 145(4) of Code of Criminal Procedure 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 Code of Criminal Procedure, in possession of the subject of dispute. For easy reference Sub-section (1) and (4) of Section 145 of Code of Criminal Procedure 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 respect 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 order made by him under Sub-section (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 Code of Criminal Procedure 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 Code of Criminal Procedure 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. 4. Keeping in view the power of this Court under Section 482 Code of Criminal Procedure, this Court is required to see as to whether in the present case there is glaring error on the part of the concerned Magistrate, who passed the order dated 1.11.07 in Case No. 235m/2004 for dropping the proceeding under Section 145 Code of Criminal Procedure and thereby lifting attachment of the disputed properties under Section 146 Code of Criminal Procedure on the ground that the dispute involved in the case is of civil nature. 5. On the application dated 27.7.2004 filed by the present Petitioner (first party) to the Court of the learned Sub Divisional Magistrate (SDM), Kamrup, Guwahati, report was called for from the Officer-in-Charge Paltan Bazar P.S. as to the dispute regarding occupation of the plot of land measuring 1 (one) Katha 2 Lechas of the land covered by K.P. Patta No. 864 and Dag No. 1616 and 1705 Sahar Ulubari Part II under Mouza Ulubari Paltanbazar. 6. 6. It is the case of the first party (present Petitioner) that on 11.10.1991, after 1st party taking delivery of possession of the disputed land, occupied it and also construction material like Bamboo, etc. etc. were damped thereon. Second party, who is having no right over the disputed land, tried to occupy the disputed land illegally and forcibly. Again on 20.4.04 second party came to the disputed land along with 5/6 boys and tried to take possession of the disputed land from the first party (present Petitioner); and that first party (present Petitioner) raised objection to the alleged illegal action of the second party (Respondent). 7. S.I. of Police attached to the P.S. Paltan Bazar also submitted a report on 22.07.04 to the Sub Divisional Magistrate, Kamrup at Guwahati that the tension is prevailing between the parties which may result in untoward incident at any time and requested the learned Magistrate to draw proceeding under Section 145 Code of Criminal Procedure and also attach the disputed land. 8. The learned Sub-Divisional Magistrate, Kamrup (M) District, after perusal of the said police report and also the petition filed by the first party (present Petitioner), was satisfied that there was likelihood of serious and imminent breach of peace between the parties concerning the disputed land and accordingly he drew up proceeding under Section 145 Code of Criminal Procedure directing both the parties to appear before the Court for filing written statements and other concerned documents, if any, in support of their respective claim over the disputed land; and the learned Magistrate, in view of the emergency over the disputed land, was pleased to attach the disputed land under Section 146 Code of Criminal Procedure Vide order dated 27.7.04. The order of the learned Sub-Divisional Magistrate Kamrup (Metro), dated 27.7.04 is quoted below: In the Court of Shri Ratul Mahanta: ACS: Sub Divisional Magistrate: Kamrup (Metro): Guwahati. Case No. 235 M/2004 under Sections 145/146 Code of Criminal Procedure Shri Prabin Chandra Das S/o Late Soni Ram Das, resident of Bhangarh, G.S. Road, P.S.:Paltanbazar Copy of the order passed by the Sub-Divisional Magistrate, Kamrup (Metro) District Guwahati on 27.7.2004. Order Seen the police report under Paltanbazar police station and perused the petition. Also heard the learned advocate on behalf of the 1st party. Order Seen the police report under Paltanbazar police station and perused the petition. Also heard the learned advocate on behalf of the 1st party. I am satisfied that there is every likelihood of serious and imminent breach of peace between the parties concerning the land as mentioned in the schedule below and hence, I now draw up a proceeding under Section 145of Code of Criminal Procedure directing both the parties to appear before this Court for filing their written statements and other concerned documents, if any in support of their respective claims over the disputed land. In view of emergency the disputed land as mentioned in the schedule here-in below is hereby ordered to be attached under Section 146 Code of Criminal Procedure (excluding dwelling houses, if any) restraining both the parties from entering into the disputed land to prevent breach of peace. O/C, Paltan Bazar Police Station is directed to execute the attachment order and report compliance. (emphasis supplied) Fixed: 12.08.04 Schedule of the D/L Land measuring 1 Katha 2 Lechas covered by K.P. Patta No. 864 Dag No. 1616 and 1705 Village Sahar Ulubari Part-II Mouza Ulubari Bounded by-North: 1st Party, South: Road, East: Noor Mokhtar, West: Noor Aslam. (Ratul Mahanta, ACS) Sub-Divisional Magistrate Kamrup (Metro) District Guwahati. No.:276 Date: 27.07.04 Copy to the O/C, Paltan Bazar Police Station for information and necessary action. (Ratul Mahanta, ACS) Sub-Divisional Magistrate Kamrup (Metro) District Guwahati. 9. The learned Magistrate, after his satisfaction as to the information about the dispute which would likely cause breach of peace concerning the disputed land between the parties, passed the said preliminary order dated 27.7.04 under Section 145(1) Code of Criminal Procedure. Thereafter, the Magistrate directed both the parties to file written statements of their respective claims as respects the fact of actual possession of the disputed land. 10. Thereafter, the Magistrate directed both the parties to file written statements of their respective claims as respects the fact of actual possession of the disputed land. 10. After passing the preliminary order under Section 145(1) Code of Criminal Procedure the learned Magistrate shall, without reference to the merits of the claims of the parties to a right to possess the disputed land, normally peruse the statements so put in, hear the arties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, decide whether any and which of the parties was, at the date of the order made by him under Sub-section(1) of Section 145 Code of Criminal Procedure in possession of the disputed land. Therefore, it is the requirement of Section 145(4) Code of Criminal Procedure that the Magistrate has to take decision after perusal or the written statements and after hearing the parties and receive all the evidences produced by the parties. 11. In the case in hand, it appears that the second party, Respondent, did not file written statement. On 1.11.07 the learned Magistrate, even without written statement filed by the Respondent (second party) and also without calling police report from the concerned Police Station, passed the order dated 01.11.07 that for the ends of justice the proceeding under Section 145Code of Criminal Procedure is dropped and also that the attachment of the disputed land is lifted. 12. As stated above, it is the bounden duties and the mandate of Section 145(4) of the Code of Criminal Procedure that the Magistrate shall have to decide without reference to the merits of the claims of the parties to the right to possess the disputed land, after taking the evidence as may be produced by them, whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the disputed land. 13. 13. In the present case, as stated above, it is clear that the learned Magistrate, who already satisfied vide his order dated 27.7.04 under Sub-section(1) of Section 145 Code of Criminal Procedure that there was likelihood of serious and imminent breach of peace between the parties concerning the disputed land and in view of the emergency the disputed land was required to be attached under Section 146 Code of Criminal Procedure, had passed the said order dated 01.11.07 without any new material. In other words, the said order dated 01.11.07 had been passed without calling any report from the police and without any evidence. Learned Magistrate, who already satisfied as to the fulfillments of the requirements for passing preliminary order under Sub-section (1) of Section 145 Code of Criminal Procedure vide his order dated 27.7.04, cannot take the decision on surmise and conjecture under his order dated 01.11.07 (impugned order) inasmuch as there was no material for changing his satisfaction as to the fulfillment of the requirements for passing the preliminary order under Sub-section (1) of Section 145 Code of Criminal Procedure. 14. This being the position, this Court is of the considered view that there is glaring error in passing the said order dated 01.11.07 by the learned Sub-Divisional Magistrate, Kamrup (Metro), Guwahati. In the result, the order of the learned Addl. District Judge (FTC) No. 2, Kamrup dated 23.7.2010 rejecting the Criminal Revision No. 4/08 assailing the said illegal order of the learned SDM, Kamrup (Metro), Guwahati dated 01.11.07 is not sustainable in the eye of law. 15. For the foregoing reasons, the order of the learned Sub-Divisional Magistrate, Kamrup (Metro), Guwahati dated 01.11.07 passed in Case No. 235m/04 and also the order of the learned Addl. District Judge (FTC) No. 2, Kamrup dated 23.7.2010 passed in Criminal Revision No. 4/08 are hereby quashed and set aside. 16. Parties are directed to appear before the Court of learned Sub-Divisional Magistrate, Kamrup (Metro) Guwahati in connection with the Case No. 235m/04 under Sections 145/146 Code of Criminal Procedure on 06.01.2011. 17. This Criminal petition is allowed. Registry is directed to send down the LCR to the Court of Sub-Divisional Magistrate, Kamrup (Metro) Guwahati within four weeks from today. Petition allowed