MOTILAL UPADHYAYA Vs. DIMBERSWAR BORA

JUDGEMENT

(1.) This Criminal Revision is so preferred by the sole petitioner Sri Motilal Upadhyaya against the Judgement and Order dated 30-9-1994 passed by the learned Sessions Judge, Nagaon, in C.M. case No. 87 (N)94 affirming the Order of the Executive Magistrate dated 20-6-1994 passed in M.R. Case No. 32/94 - a proceeding under Section 145, Cr. P.C. declaring the possession of Dimberswar Bora and others figuring here opposite party over the land in proceeding.

(2.) Mr. K. K. Mahanta, learned counsel, for the petitioner and B. K. Goswami, learned counsel for the opposite party are heard at length.

(3.) 0n behalf of the petitioner, Mr. Mahanta, learned counsel submits that though following Order so passed in proceeding under Section 145, Cr. P.C. against the present petitioner by the Executive Magistrate on 20-6-1994, Criminal Revision was so preferred seeking redressal before the learned Sessions Judge but the same was dismissed arbitrarily on 30-9-1994 on criptic grounds and hence this Revision Petition under Section 482, Cr. P.C. read with Article 227 of the Constitution for preventing the abuse of the process of the court and for securing the ends of justice by also exercising the general power of Superintendents. The points so taken as good grounds for setting aside the Order dated 30-9-1994 is that learned Executive Magistrate would, not have personally made local enquiry by visiting the plot rather the same would have been made if felt necessary as per the provisions of Section 148, Cr. P.C. and further more without preparing the memorandum of the Inspection note, it is further pointed out that the learned Executive Magistrate has erred to a great extent causing prejudice to the Petitioner and it can well be said that his deciding factum of possession over the land in proceeding in favour of the opposite party appearing of the local enquiry so made which was not so made as per the provisions of law hence there is abuse of the process of the Court which requires interference by exercising inherent powers under Section 482, Cr. P.C. Mr. Mahanta further submits that knowing it fully well that normally during the same period is not expected to file second Criminal Revision which is a bar under Section 399(3) and 397(3) of the Cr. P.C. but where there is glaring abuse of the process of the Court, the persons aggrieved has all the rights as to invokes, the power under Section 482 of the Cr. P.C. and hence this petition. In support of this contention the learned counsel for the Petitioner referred : some of the reported cases in 1983 (1) GLR 139 : 1985 Cr LJ 771 (Pat) (Sukhailal v. Saligram Dubey, Tahsildar of Tisco), AIR 1985 SC 1664 (Keisam Kumar Singh v. State of Manipur), AIR 1980 SC 258 : (1980 Cri LJ 202) (Raj Kapoor v. State, (Delhi Administration).