JIRESHWAR MAHTO Vs. MATHURA SINGH

JUDGEMENT

(1.) This Criminal Revision has been filed under Section 397 and 401 of the Criminal Procedure Code against the order dated 27.7.1998 passed by the 6th Additional District and Sessions Judge, Palamau at Daltonganj in Criminal Revision No. 42 of 1991 whereby and where under the learned Judge set aside the order for issuance of notice/show cause.

(2.) Short facts as alleged that the lands appertaining to plot No. 366 of Khata No. 110, area 19 decimals and plot No. 370, Khata No. 110 area 5 decimals of village Karar belonged to the recorded tenant of Hardutt Pathak and Ramdutt Pathak. The predecessors in interest of the petitioners purchased the said land by registered deed of sale dated 29.9.1931 from the successor of interest of Hardutt Pathak. This dispute also arose between Chandu Mahto and members of the opposite parties on the question of possession of the said land whereupon a proceeding under Section 145, Cr.P.C. was initiated and possession in favour of Chandu Mahto, father of the petitioners will declared by an order dated 18.5.1963 and the said order remained intact as no revision was filed on behalf of the opposite party. An application was filed on behalf of the petitioners before the Officer-in-charge that the members of opposite party Nos. 1, 2 and 3 are trying to dig a foundation for construction of a dwelling in place of jhopri. In view of the order dated 18.5.1963 the Sub-Divisional Magistrate ordered for issuance of notice/show cause by letter No. 579 dated 16.3.1991 but the opposite parties No. 1 and 2 without filing any show-cause before the Sub-Divisional Magistrate, Sadar, moved the District and Sessions Judge in revision being Numbered as Criminal Revision No. 42 of 1991 by which the learned Judge set aside the notice/show cause by the impugned order, hence this revision.

(3.) The learned Counsel appearing on behalf of the petitioners submitted that the learned Additional Sessions Judge committed error in setting aside the order for issuances of notice/show cause dated 16.3.1991 and the learned Curt below has wrongly come to the conclusion that the order dated 16.3.1991 under Section 145, Cr.P.C. has been issued under the New Code of Criminal Procedure rather Section 145(6) Cr.P.C. is same to the section of old Code as well as there is no mentioned in the notice that it is being sent under New Code. It is further argued that the order passed by the learned Judge is quite illegal and misconceived as well as simply a notice/show-cause was sent, the opposite party could have easily filed the show cause challenging all the points before the Sub-Divisional Magistrate and there was no final order of S.D.M. Sadar. It is further argued that the learned Magistrate has wrongly come to the conclusion that the said notice dated 16.3.1991 was issued under New Act and the order was passed declaring the possession of the petitioners under old Act. It is also argued that the order passed under Section 145, Cr.P.C. dated 18.5.1963 has never been challenged either through revision or through any other means and so the said order remained intact.