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2011 DIGILAW 348 (PAT)

Syed Sabir Hussain v. State Of Bihar

2011-03-07

SHEEMA ALI KHAN

body2011
JUDGEMENT S.A.Khan, J. 1. The petitioners are the 1st party. The possession of the 2nd party was declared vide order, dated 31.12.1997 which was challenged by the petitioners by filing Criminal Revision No. 13/1998 which was disposed of on 3.8.1998 remanding the matter back for a fresh decision in accordance with law by allowing the petitioners to cross examine the witnesses of the 2nd party. 2. After the remand the records reached the court of the Executive Magistrate, Saran on 17.12.1998. Notices were issued to the parties. The petitioners and the opposite party appeared for the first time on 16.6.1999. On 16.6.1999 it is said that the petitioners filed an application for recall of the witnesses of the 2nd party-opposite party before the court. The court has recorded the order stating that the 1st party has prayed that time may be fixed for examining the witnesses. There appears to be some confusion in the order, dated 16.6.1999 as it indicates that the petitioners were praying that a date should be fixed for producing their witnesses, wherein it is specifically stated and submitted that the petitioners have already examined their witnesses and, therefore, there was no question of reexamining them as it would be beyond the scope of the remand order. Again on 4.4.2000 the petitioners filed a petition that a date may be fixed for recalling the witnesses, whereas the 2nd party-opposite party filed a petition for closing the case. 3. By order, dated 19.4.2000 the Executive Magistrate dismissed the petition filed on behalf of the petitioners on the ground that the petitioners had taken one year and four months in filing the petition for recall of the witnesses of the 2nd party which is actually an error of record. Likewise the Revision Application No. 148/2000 was also dismissed for the same reasons. 4. Accordingly the impugned orders, dated 25.8.2000 and 19.4.2000 are hereby quashed as they are based on wrong representation of facts. 5. Since the matter is very old, I direct that the petitioners and the opposite party (i.e. 2nd party) should appear before the Executive Magistrate, Saran on 18.4.2011 with a copy of this order. The Executive Magistrate shall fix a date for appearance of the witnesses of the 2nd party by the 1st week of May 2011 and conclude the proceeding by August 2011. Both the parties are directed to cooperate with the court below. The Executive Magistrate shall fix a date for appearance of the witnesses of the 2nd party by the 1st week of May 2011 and conclude the proceeding by August 2011. Both the parties are directed to cooperate with the court below. In case the opposite party refuses to produce the witnesses within time without there being any cause for non-production, the court below would take an adverse inference on account of absence of witnesses of the 2nd party. Counsel for the petitioners is directed give a list of the witnesses to the court below on 18.4.2011 along with a petition and a copy of this order. 6. This application is disposed of with the aforesaid directions.