DHIRESWAR SARMA Vs. PARAMESH CHAKRABORTY

JUDGEMENT

(1.) This revision petition has arisen and directed against the order dated 15/11/1997 passed by Smti C. Barua. Executive Magistrate. Guwahati in Misc. case No. 242M194 under Sections 145/146 Cr. P.C. A proceeding under Sections 145/146 Cr. P.C. was drawn up at the instance of the 1st party, in respect of a dispute likely to cause to breach of peace concerning a dispute of land. On the strength of an application filed by the opposite party list party the proceeding was initiated by the learned Executive Magistrate on 10/6/1981, and ordered for attachment of the dispute land measuring 2 K covered by Dag No. 311 patta No. 60 in village Fatasil Nonke village Mouza Jalukbari. 2nd party submitted written statement and witnesses were examined on behalf of both the parties.

(2.) On consideration of materials on records and upon hearing the parties the learned Executive Magistrate by its order dated 19/12/1997 declared the possession in favour of the first party. Hence the Revision Petition.

(3.) Mr. Z. Kamar, the learned counsel appearing on behalf of the 2nd party petitioner has submitted that the learned Executive Magistrate acted in most illegal fashion by drawing up of a proceeding in a most casual manner with out application of mind. In support of his contention the learned counsel pointed out to the note of the Executive Magistrate dated 10/6/1994 asking the Bench Assistant to draw up a proceeding under Section 145 Cr. P.C. read with Section 146 Cr. P.C. Mr. Z. Kamar, the learned counsel for the petitioner further submitted that the impugned order of the learned Executive Magistrate is per-se arbitrary and capricious for want of any reasoning as to how the learned court reached the conclusion that the 1st party in possession of the disputed land. Mr. Kamar, the learned counsel for the petitioners further submitted that the impugned order of the learned Executive Magistrate declaring possession of the land in favour of 1st party was wholly without jurisdiction so much so in the instant case petitioners were forcibly and wrongfully dispossessed from the land in question. In such a situation the Executive Magistrate could exercise his jurisdiction only when the wrongful dispossession was made within the period specified in subsection 4 of Section 145 Cr. P.C. The learned Magistrate in the instant case since fail to address his mind in the absence of such finding could have declared possession in favour of the first party submitted the learned counsel for the petitioners.