(1.) THE revision petitioner is the counter petitioner A party and respondents 1 to 3 are the counter petitioners B Party in M.C. No. 79 of 1987 on the file of the Sub Divisional Magistrate, Pondicherry and the respondent and petitioners respectively in Criminal Revision Petition No. 14 of 1993 on the file of the Principal Sessions Judge, Pondicherry. THE order dated 17.3.1994 in criminal revision petition No. 14 of 1993, which set aside the final order dated 17.9.1993 passed under Section 145(6) of the Code of Criminal Procedure in M.C. No. 79 of 1987 in favour of the counter-petitioner A party, is challenged in this revision before this Court. In this order, the parties to the revision petition will hereafter be referred to as the counter petitioner A party and counter petitioner B party for convenience sake.
(2.) A few facts have to be necessarily stated in this order so as to understand the points in controversy and they are as follows:
(3.) FROM the date of the issue of the preliminary order viz., 5.10.1988 again the proceedings underwent a number of adjournments. It appears that the counter petitioner A Party, who was already examined in this case as P.W.1, was further examined and cross-examined and the Station House Officer, D' Nagar Police Station was examined again and cross examined as well as Counter Petitioner 2 and 3 of B Party were examined as R.W.1 and R.W.2. Ultimately after several adjournments, the final order dated 17.9.1993 came to be passed by the Executive Magistrate in favour of the Counter Petitioner A Party. The learned Executive Magistrate on analysing the materials placed before him held that the counter petitioner A Party was forcibly and illegally dispossessed from the property and thus therefore the counter petitioner A party must be treated as if he was in possession of the property on the date of the preliminary order passed on 5.10.1988 under Section 145(1) of the Code of Criminal Procedure. Accordingly, the learned Executive Magistrate declared that the Counter Petitioner A Party is entitled to the possession of the property until evicted therefrom in due course of law and disturbance of such possession until such eviction was forbidden. The counter petitioners B Party were directed to restore possession of the property to the counter petitioner A party. This order was challenged by the counter petitioner B Party before the Court of Session, Pondicherry. The learned Judge allowed the revision by order dated 7.3.1994 which is challenged in the present revision. In the course of that order, the learned District Judge found that dispossession having taken place as early as 7.12.1985 and the preliminary order having come to be passed on 5.10.1988, it cannot be said that the dispossession took place within two months before passing the preliminary order. The sessions Judge appears to be of the view that unless dispossession is proved to have taken place within two months prior to the preliminary order, no order under Section 145(6) of the Code of Criminal Procedure could be passed. Relying upon a judgment of this Court reported in Athiappa Gounder v. S.A. Athiappa, AIR 1967 Mad. 445, the learned Judge held that the impugned order is against law and the same is liable to be set aside.