KAILASH CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Sec. 482, Cr.P.C. has been preferred against the order dated 21.7.98 passed by the IInd Additional Sessions Judge, Dhanbad, in Criminal Revision No. 79 of 1997 under Sec. 145, Cr.P.C. whereby and whereunder he set aside the order passed by the Sub -Divisional Magistrate Dhanbad, in M.P. Case No. 687/93 and remitted the matter to him for providing opportunity to the parties to the proceeding to prove the documents already filed by them and decide the matter in accordance with law.

(2.) THE relevant facts concerning this application are that on 6.4.93 the opposite party No. 2 filed a petition under Sec. 145, Cr.P.C. before the Sub -divisional Magistrate, Dhanbad, with a prayer to initiate the proceeding under Sec. 145, Cr.P.C. in respect of a piece of land the details of which was given in the petition. It was alleged that the. petitioner along with some others persons tried to disturb the peaceful possession of the opposite party No. 2. The learned Sub -Divisional Magistrate, Dhanbad, registered M.P. Case No. 687/93 on the basis of the petition filed by the opposite party No. 2 under Sec. 145, Cr.P.C. and is vied notice to both the parties who filed their respective written statements in course of the proceeding. The petitioner was the second party who examined nine witnesses and certain documents were also marked as Exhibit -1 to 6/b on behalf of the petitioner. Opposite party No. 2 also examined two witnesses but did not file any documentary evidence. After considering the evidence of all the witnesses examined by both the parties and hearing the arguments advanced on their behalf, learned Executive Magistrate, Dhanbad, declared possession over the disputed land in favour of the petitioner/second party by his order dated 18.8.97. The opposite party No. 2 preferred a revision against the order dated 18.8.97 passed by the learned Executive Magistrate, Dhanbad, vide Cr. Revision No. 79/97, which was ultimately transferred to the Court of 2nd Additional Sessions Judge, Dhanbad, for disposal.

(3.) IT appears from the impugned judgment passed by the learned 2nd Additional Sussexs Judge, Dhanbad, that he set aside the order of the Executive Magistrate solely on the ground that the several documents tiled on behalf of the second party had not been marked as Exhibit as per the provision of the Evidence Act and so, those documents were not admissible, in evidence. Therefore, relying on the decision of this Court in the case of Kanda Musher and Ors. V/s. Jagdish Devi and Ors. 1979 B.B.C.J. 82, the learned Additional Sessions Judge set aside the order passed by the Executive Magistrate and remitted back the matter to the Court concerned directing him to provide opportunity to the parties to prove the documents in accordance with law.