JITENDRA KUMAR Vs. ANIL KUMAR

JUDGEMENT

(1.) Heard learned counsel for the revisionist, learned A.G.A. for the State, Shri Bireshwar Nath, learned counsel for respondent no.2 and perused the record.

(2.) This criminal revision has been filed against the judgment and order dtd. 15/11/2000 passed by IV Additional Sessions Judge, Sultanpur in Criminal Revision No.239 of 1999 in re: Anil Kumar vs. Jitendra Kumar and others, whereby learned revisional Court, while setting aside the order dtd. 23/4/1999 passed by Sub-Divisional Magistrate Kadipur, had remanded the matter back to the Sub-Divisional Magistrate Kadipur to decide afresh on merits.

(3.) The brief facts of the case are that an application dtd. 13/8/1997 was preferred by the revisionist with the prayer that respondent no.1, Anil Kumar, be restrained in interfering his possession along with other prayers. Upon this application preferred by the revisionist (Jitendra Kumar), learned Sub- Divisional Magistrate Kadipur, vide order dtd. 14/8/1997, directed the Station In-charge, Kotwali Nagar, Kadipur to ensure law and order be maintained and do the needful. On 14/8/1997, the respondent, Anil Kumar, also preferred an application under Sec. 145 Cr.P.C. and 146 Cr.P.C. disputing the possession of revisionist (Jitendra Kumar) and further restraining him not to interfere in his possession along with other prayers. On this application also, direction was issued to the Station In-charge, Police Station Kadipur to conduct enquiry and submit its report within a week. A challani report dtd. 14/10/1997 was submitted by the police before the learned Sub-Divisional Magistrate Kadipur wherein it was opined that due to dispute of partition, there has been ample tension between both the parties and which can disrupt the peace at any time. After being primarily satisfied, the learned Sub-Divisional Magistrate Kadipur passed an order under Sec. 145 (1) Cr.P.C. on 27/10/1997 and both the parties were directed to remain present on 12/11/1997 in its Court and file the evidence in support of their claim. On the same date i.e. on 27/10/1997 order under Sec. 146 (1) Cr.P.C was passed attaching the disputed properties. Under orders of the Sub- Divisional Magistrate Kadipur, the Tehsildar conducted inquiry on the spot and submitted its report dtd. 2/12/1997. On the basis of such report learned Magistrate vide his order dtd. 3/12/1997 dropped the proceedings under Sec. 146(1) Cr.P.C. and provided opportunity to the parties to lead evidence and pleadings in support of their claim. Within few days the revisionist (Jitendra Kumar) filed an objection before the Sub- Divisional Officer against his preliminary order stating that since there is no possibility of disruption of peace and law and order between the parties, therefore, he may be permitted to withdraw his case. The other party, Anil Kumar (respondent), who was the revisionist before the learned Sessions Judge made a contrary claim by filing his statement on 29/12/1997 and disputed the possession. Learned Sub-Divisional Magistrate Kadipur, after hearing the parties and perusal of the record, dropped the proceedings under Sec. 145 Cr.P.C. while giving a finding that there is no likelihood of disruption of peace as the first party, namely, Jitendra Kumar (revisionist) himself has prayed that there is no likelihood of disruption of peace and since Jitendra Kumar (revisionist) is first party in the case and himself does not want to pursue the case and it will not be proper to proceed with the case only at the instance of the other party and thus has dropped the proceedings vide order dtd. 23/4/1999.