LAKSHMINI KUER Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the parties and with their consent this application is being disposed of at the time of admission itself.

(2.) THE petitioners have impugned the order of the sub -divisional Magistrate, Rosera, dated 5.11.99 by reason of which he has recalled the order of attachment passed by him on 17.6.97.

(3.) THE facts, which are not in dispute, are as follows : A proceeding under Section 145 of the Code of Criminal Procedure (hereinafter to be referred as the Code) was started at the instance of the petitioners first party in which notices were issued directing the parties to fife their show cause. Show cause have been filed but the matter is pending since date of its initiation i.e. from 1997. During this long period some disputes arose, which necessitated in passing of an order of attachment under Section 146(1) of the Code. Before passing this order on 17.6.97 the learned sub -divisional Magistrate perused the police report as well as his own fetter as administrator. After hearing the petitioners -first party order of attachment was passed appointing the circle officer, Bibhutipur, as receiver. Be - ing aggrieved the second party opposite parties moved this Court in Cr. Misc. No. 1372 of 1997 contending, inter alia, that the said order of attachment was passed without giving them any opportunity of being heard. This Court disposed of the said application on 23.9.1997 observing, inter alia, that if the order was passed without hearing the petitioners, then they should have approached the Magistrate first instead of rushing to this court and the Magistrate should have given an opportunity of hearing to them. Observing this, this court disposed of the same with an observation that if the petitioners (opposite parties herein) approached the Magistrate then he will consider the question of attachment after according an opportunity of hearing to them provided the order was passed behind their back. Pursuant to this order of the High Court second party -opposite parties approached the Magistrate and this time both the parties were heard. After hearing them by the impugned order dated 5.11.99 he recalled the order of attachment dated 17.6.97 and directed the Circle Officer to settle the lands in view of the Rules and sub -rules of Budhi Gandak. This order of the Magistrate is under challenge in the instant application.