RAMESHWAR NATH PAHAK Vs. STATE OF U P

JUDGEMENT

(1.) This application under Sec. 482 Criminal Procedure Code has been filed for quashing the order dated 17.8.1998 passed by the Sub Divisional Magistrate/ Additional District Magistrate, Menhdawal and the order dated 15.9.1999 passed by the Special Judge (S.C./S.T. Act), Basti in Criminal Revision No. 162 of 1998, Ramesh Nath Pathak and Ors. Vs. Dashrath Kishore Singh and Ors.. The notices were issued to the opposite party Nos. 2 to 4 to file counter affidavit within one month by this Court on 8.12.1999. Thereafter another order was passed on 23.7.2004 staying the operation of the impugned orders dated 17.8.1998 and 15.9.1999. The office report dated 20.5.2000 mentions that notices issued to the opposite party Nos. 2 to 4 fixing 6.1.2000 has been returned back alter service but no one has put in appearance nor any counter affidavit has been filed. The application has been listed again today and there is no one on behalf of the contesting opposite parties.

(2.) Heard Sri Daya Shanker Mishra, learned counsel for the applicants and learned A.G.A.

(3.) The facts of the case are that the proceedings under Sec. 145 Criminal Procedure Code commenced on the report dated 28.7.1997 of the Police of Police Station Menhadawal, District Sant Kabir Nagar. The learned S.D.M. passed a preliminary order on 5.8.1997 which is Annexure-2 to the affidavit. On 6.8.1997, the learned Magistrate passed an order under Sec. 146(1) Criminal Procedure Code after being satisfied that it is a case of emergency and there are likelihood of breach of peace on account of the disputed plot No. 643/1, 643/2 and 640/2 and also in respect of the partial constructions standing on the said plots. The learned Magistrate had expressed his satisfaction that it was a case of great emergency and in the circumstances, the order of attachment was passed. The Station House Officer, Police Station Menhadawal was required to submit his compliance report. The report was submitted on 9.8.1997. Subsequently an application for recall of the order under Sec. 146(1) Criminal Procedure Code was moved at the behest of the contesting opposite parties on 8.8.1997 which is Annexure-4 to the affidavit. Sri D.S. Mishra, Advocate had placed the said application and a perusal of the same shows that it was contended by the contesting opposite parties that the order under Sec. 146(1) Criminal Procedure Code was an exparte order and in violation of principles laid down by this Court in the case of Salag Ram Vs. State of U.P. ACC, 1996, 671. The application was directed to be put up with record on 10.8.1997 and order under Sec. 146(1) Criminal Procedure Code dated 6.8.1997 was set at naught on 17.8.1998. A Criminal Revision was filed in the court of Special Judge (S.C./S.T. Act), Basti which was also dismissed on 15.9.1999. Both the orders arc impugned in the present application,