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2012 DIGILAW 465 (PAT)

Manjula Devi v. State of Bihar

2012-03-16

RAJENDRA KUMAR MISHRA

body2012
JUDGMENT Rajendra Kumar Mishra, J.:- This application filed on behalf of the petitioner, under Section 482 of the Code of Criminal Procedure, is to quash the order the order dated 18.9.2003 passed by the Sub Divisional Magistrate, Saharsa, in Miscellaneous Case No.439 of 1989, declaring the possession of the first party/opposite party nos.2 and 3 with respect to the land in dispute in a proceeding under Section 145 of the Code of Criminal Procedure and also the order dated 2.11.2006 passed by the Additional Sessions Judge, Fast Track Court No.II, Saharsa, dismissing the Criminal Revision No.353 of 2003 as preferred by the member of the second party/petitioner against the aforesaid order dated 18.9.2003. 2. The brief fact, leading to this application, is that on the basis of the report submitted by the Officer Incharge of Sourbazar Police Station, the Sub Divisional Magistrate, Saharsa, initiated a proceeding under Section 144 of the Code of Criminal Procedure, in which the opposite party nos.2 and 3 were the members of the first party and the petitioner was member of second party, through Miscellaneous Case No.439 of 1989 with respect to the land in dispute. After filing of the show cause by the parties, the Sub Divisional Magistrate, Saharsa, converted the proceeding under Section 144 of the Code of Criminal Procedure into a proceeding under Section 145 of the Code of Criminal Procedure and directed both the parties to file their written statement. After filing of the written statement and adducing the evidence by both the parties, the Sub Divisional Magistrate, Saharsa, passed the order on 18.9.2003, declaring the possession of the members of the first party/opposite party nos.2 and 3 until the order passed by the competent court, restraining the member of the second party/petitioner not to interfere in the possession of the members of the first party/opposite party nos.2 and 3. Being aggrieved and dissatisfied with the aforesaid order dated 18.9.2003 passed by the Sub Divisional Magistrate, Saharsa, the member of the second party/petitioner preferred Criminal Revision No.353 of 2003, which was dismissed, after hearing the parties, by the Additional Sessions Judge, Fast Track Court No.II, Saharsa, vide order dated 2.11.2006. 3. Being aggrieved and dissatisfied with the aforesaid order dated 18.9.2003 passed by the Sub Divisional Magistrate, Saharsa, the member of the second party/petitioner preferred Criminal Revision No.353 of 2003, which was dismissed, after hearing the parties, by the Additional Sessions Judge, Fast Track Court No.II, Saharsa, vide order dated 2.11.2006. 3. Learned counsel appearing on behalf of the petitioner made submission that Suresh Malakar, who was one of the members of the first party, neither filed the vakalatnama in the proceeding nor he was examined in the proceeding but in spite of that the learned court below had declared the possession of the members of the first party regarding the land in dispute. It has also been submitted that the learned Magistrate while arriving at the conclusion about the possession of the members of the first party/opposite party nos.2 and 3 has considered the documents related to the title, which are not permissible in law in a proceeding under Section 145 of the Code of Criminal Procedure. It has also been submitted that the learned Magistrate has also considered the deposition of Dulari Devi, who is said to be executed the sale deed in favour of member of the second party/petitioner, of a criminal case as lodged on behalf of Dulari Devi against the member of the second party/petitioner and others for committing forgery to get the sale deed executed in respect to the land in dispute. 4. On the other hand, learned counsel for the opposite party nos.2 and 3 made submission that, in fact, the Additional Sessions Judge, Fast Track Court No.II, Saharsa, has discussed the order of the Sub Divisional Magistrate, Saharsa, in detail in his order dated 2.11.2006 and has rightly dismissed the Criminal Revision as preferred by the member of the second party/petitioner against the order dated 18.9.2003 passed by the Sub Divisional Magistrate, Saharsa, declaring the possession of members of first party/opposite party nos.2 and 3. It has also been submitted that, in fact, the land in dispute was purchased by Uma Kant Malakar through sale deed dated 5.2.1972 from Kunjilal Bhagat and, accordingly, his name was mutated in the revenue record but, later on, the member of the second party/petitioner in collusion with others got executed the sale deed in respect to the same land from Dulari Devi, the wife of Kunjilal Bhagat, who on knowing about cheating and forgery to get the sale deed executed filed the criminal case against the petitioner and others, in which they have been convicted and sentenced. 5. On going through the order dated 18.9.2003 passed by the Sub Divisional Magistrate, Saharsa, in Miscellaneous Case No.439 of 1989, it appears that the Sub Divisional Magistrate while passing the order, declaring the possession of the members of the first party/opposite party nos.2 and 3 with respect to the land in dispute in a proceeding under Section 145 of the Code of Criminal Procedure, has considered the evidence, oral as well as documentary, and the deposition of Dulari Devi, in a criminal case of cheating and forgery lodged against the member of the second party/petitioner and others in respect to get the sale deed executed in respect to the disputed land in favour of the member of the second party/petitioner. The Additional Sessions Judge, Fast Track Court No.II, Saharsa, after considering the order of the Sub Divisioinal Magistrate, Saharsa, arrived at the conclusion that there is no ambiguity and infirmity in the order of the Sub Divisional Magistrate, Saharsa and, accordingly, dismissed the Criminal Revision No.353 of 2003, as preferred by the petitioner against the order dated 18.9.2003 passed by the Sub Divisional Magistrate, Saharsa in Miscellaneous Case No.439 of 1989, vide order dated 2.11.2006, declaring the possession of the members of the first party/opposite party nos.2 and 3. 6. In a proceeding under Section 145 of the Code of Criminal Procedure, it is no doubt that the executive magistrate could not hold the title in respect to land in dispute but the documents, adduced as evidence in course of enquiry in respect of title, could be looked into incidentally to ascertain the possession. 6. In a proceeding under Section 145 of the Code of Criminal Procedure, it is no doubt that the executive magistrate could not hold the title in respect to land in dispute but the documents, adduced as evidence in course of enquiry in respect of title, could be looked into incidentally to ascertain the possession. As far as the submission as made by the learned counsel for the petitioner about non examination of opposite party no.2, Suresh Malakar, one of the members of first party is concerned, there is no legal requirement about examination of all members of party in enquiry in a proceeding under Section 145 of the Code of Criminal Procedure. 7. Under the facts and circumstances, I find no illegality in the order dated 18.9.2003 passed by the Sub Divisional Magistrate, Saharsa, in Miscellaneous Case No.439 of 1989 and also in the order 2.11.2006 passed by the Additional Sessions Judge, Fast Track Court No.II, Saharsa in Criminal Revision No.353 of 2003, amounting to abuse of the process of the court. Accordingly, this application stands dismissed. Application dismissed.