BABASAHEB TUKARAM NALE Vs. SUBHEDAR TUKARAM PHADTARE

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution of India and under section 482 Cri.P.C. by original Party No. II in proceedings under section 145 Cri.P.C. challenging the order of the learned Additional Sessions Judge, Satara, passed in Criminal Revision Application No. 142 of 1983.

(2.) The material facts are these: On 30th June, 1982, the Phalton Police moved the learned Executive Magistrate, Phalton under section 145 Cri.P.C. on the allegation that there existed a dispute between the present petitioners (Party No. II) and the respondents (party No. I) in respect of a house bearing Gram Panchayat No. 167 and an open site bearing Gram Panchayat No. 165 of village Gunavare, which dispute was likely to cause breach of the peace. Thereafter on 12th July, 1982, the police sealed the disputed property by themselves without any order of the learned Magistrate. Ex facie, this action is not supported by an provisions of law. On 15th July, 1982, party No. 1 moved the Magistrte to deseal the property. On 3rd August, 1982, the learned Magistrate directed that the disputed property be restored back to party No. 1. On 6th August, 1982, the learned Magistrate passed a composite order under section 145(1) and section 146(1), calling upon the parties to submit their respective written statements before him and also directing attachment of the property by sealing it. On 9th August, 1982, the disputed property actually came to be sealed again in execution of the aforesaid order dated 6th August, 1982. On 27th September, 1982, the learned Magistrate passed the final orders under section 145(6) holding that Party No. 1 was in possession of the disputed property on the date of the preliminary order and directing restoration of possession to them. It appears that in pursuance of this order, the possession of the disputed property was actually made over to party No. 1 on 29th September, 1982.

(3.) Party No. II, the present petitioners, approached the Sessions Court, Satara in revision being Cr. Rev. Application No. 146 of 1982 (wrongly mentioned as Cr. Rev. Application No. 346 of 1982 in the Sessions Courts Judgment). The Sessions Court set aside the order of the learned Magistrate dated 27th September, 1982 on the ground that he had not afforded sufficient opportunity to the parties to lead their evidence. The case was remanded back to the learned Magistrate for a fresh disposal after giving opportunity to both sides to lead oral evidence. The Sessions Court also fixed 25th August, 1983 as the date on which the parties were to appear before the learned Magistrate.