LAWS(GAU)-1995-6-17

LOHARI BORA Vs. NURUL ISLAM HAZARIKA

Decided On June 13, 1995
LAHORI BORA Appellant
V/S
NURUL ISLAM HAZARIKA Respondents

JUDGEMENT

(1.) This revision petition under sec. 397 read with sec. 401 Cr.P.C. is directed against the order dated 5.11.92 passed by the learned Sessions Judge, Sibsagar in Crl Revision No.26 (2) by virtue of which the entire proceeding including initial order so passed on 25.7.89 u/s l45 (1) Cr.P.C. is set aside. Since the preliminary order u/s 145 (1) Cf.P.C was set aside, the learned Sessions Judge also set aside the final order so passed u/s 145 Cr.P.C. dated 30.4.92.

(2.) Short history giving rise to the revision petition is that at the instance of the first party i.e. Lahori Bora, the petitioner herein, a proceeding under sec. 145 (1) Cr.P.C. was initiated. After going through the petition dated 25.7.89 supported by an affidavit, preliminary order so passed in the said proceeding and on 30.4.92 by the learned Executive Magistrate, passed the find order declaring possession of the first party-petitioner. Against the said order dated 30.4.92 a revision was preferred by the opposite party, member of the Second Party Narul Islam Hazarika before the learned Sessions Judge bearing Crl. Revn. No. 26 192 on 21.7.92 challenging both the orders i.e. orders dated 25.7.89 by virtue of which the proceedings was so initiated and also the order dated 30.4.92 by which in 145 Cr.P.C. proceeding was finally disposed of declaring possession of the first party over the land in proceeding. The learned Sessions Judge by the impugned order has thus come to the conclusion that while passing the preliminary order dated 25.7.89, the learned Executive Magistrate has failed to indicate that because of the bona fide land dispute between the parties there was any apprehension of breach of peace as to effect the public tranquility of the local area and because of this, flaw therein the learned Sessions Judge on 5.11.92 was pleased to set aside the entire proceeding particularly the preliminary order dated 25.7.89. Being aggrieved, the petitioner who happens to be member of the first in whose favour the possession over the land in question was so declared by the Executive Magistrate on 30.4.92, has thus preferred this revision.

(3.) Mr. J,M. Choudhury, learned counsel for the petitioner submits that the opposite party members did not prefer any revision when the preliminary order was so passed on 25.7.89 and allowed the whole proceeding to go and when the 145 proceedings was finally disposed of declaring possession over the land in favour of the petitioner, the revision was so preferred even challenging the order dated 25.7,89 alongwith the order dated 30.4.92. According to Mr. Choudhury the initial order dated 25.7.92 could not have been challenged by the other side at such a belated stage when the possession of the petitioner was so declared and that being the position it is further pointed out that the learned Sessions Judge has thus erred in setting aside the preliminary order. By referring to preliminary order dtd 25.7.89 so passed in Misc Case No. 147/89 it has been pointed out that on that date rather a composite order has been passed initiating the proceeding u/s 145 Cr.P.C. also attaching the land in the proceeding u/s 146 Cr.P.C. with all fairness, Mr. Cboudhury has submitted that though it has not been specifically mentioned at the first part of the order with regard to the breach of peace apprehended because of the bona fide land dispute between the parties even affecting the public: peace and tranquility, but in the composite order so passed relating to attachment the learned Executive Magistrate was very specific in stating that in view of maintaining peace and tranquility between the parties as well as in the local area the order is so passed which according to Mr. Choudhury reflects the mind of the Executive Magistrate prevailing on that date because of apprehension of breach of peace between the parties as well as the local area people existing. Hence, it is argued that ingredients u/s 145 (1) Cr.P.C. is met and being fully satisfied the learned Magistrate initiated the proceeding u/s 145 Cr.P.C. on that date. Mr. Choudhury also pointed out that if in any way the opposite party was so aggrieved by the order dated 25.7.89 it was incumbent on the part of the person so aggrieved to prefer a revision within 90 days. But the order dated 25.7.89 is challenged by the other side only on 21.5.92 when the matter got finally disposed by the learned Magistrate against him. Hence, his prayer is that the impugned order so passed by the learned Sessions Judge to the extent of setting aside the initial order dated 25.7.89 be set aside,.