SHYAM NARAYAN ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS petition, filed under Article 227 of the Constitution of India, seeks to set aside order dated 22.12.1998 recorded by the Subdivisional Magistrate, Samastipur in Misc. Case no. 294 of 1998 by which the police was directed to oust the petitioner from ground floor of the premises in question and to hand over possession to respondent no. 5, as well to set aside order dated 11.7.2000 recorded by learned First Additional Sessions Judge, Samastipur in Cr. Rev. no. 123 of 1999. by which the revision petition against the aforesaid order dated 22.12.1998 was dismissed, as well the order dated 29.8.1998 recorded in M.R. no. 84/1995 in a proceeding under section 145 of the Code of Criminal Procedure (hereinafter referred to as 'the Code ') by the learned Executive Magistrate, Samastipur in which, over the aforesaid premises possession of respondent no. 5, Lakshmi Devi, was declared including upon the appertaining lands. Learned counsel of petitioner and respondent no. 5 and learned Additional Public Prosecutor on behalf of the respondents have been heard on merits. Thus, this petition is being disposed of at this stage.

(2.) THERE is no dispute that proceeding under section 145 of the Code related to two rooms situated on the first floor of the house in question which also appears to have been admitted before the learned First Additional Sessions Judge. However, by order dated 29.8.1998, Annexure -2, the learned Executive Magistrate, while deciding the proceeding, in which the present petitioner was first party and Lakshmi Devi was second party, declared that the entire property was in possession of the second party at the time the proceeding was commenced, directing that she would continue in such possession unless otherwise directed by a civil court to the contrary, and first party was restrained from going upon the land in question and interfering into the possession of the second party, Lakshmi Devi. It will further apppear, vide Annexure - 3, that a Miscellaneous Case no. 294 of 1998 was decided by the learned Subdivisional Magistrate, Samastipur by order dated 22.12.1998 which was filed by the aforesaid Lakshmi Devi in which referring to the aforesaid order of the learned Executive Magistrate in 145 proceeding petitioner Lakshmi Devi had contended that the second party/present petitioner had entered into the house and wanted to dispossess Lakshmi Devi. Learned Subdivisional Magistrate, on perusal of report of Police, came to the conclusion that the present petitioner was trying to dispossess Lakshmi Devi, her being a lady, and directed the officer -in -charge concerned to oust the present petitioner from the house which order was executed by the Police Officer and, thus, the petitioner was dispossessed from the house.

(3.) THEREFORE , it will appear that the learned Executive Magistrate had passed an order declaring possession of the second party in the proceeding over a prop - erty which was not even subject matter of the proceeding. If such order is allowed to stand on technical grounds, as noted by the learned lower court, that will cause grave miscarriage of justice as well abuse of the process of law. If in a proceeding under section 145 of the Code a declaration has been made not only for the property in proceeding but property not in the proceeding then the order of the learned Executive Magistrate relating to property which was not involved in proceeding must be deemed to be non -est in law. Moreover, this order was passed, as submitted by the learned counsel for the petitioner, when criminal revision against order recorded in Misc. Case no. 294 of 1998 was filed and in that Cr. Rev. no. 123 of 1999 by order dated 19.2.1999 the learned Sessions Judge had stayed the operation of the order of the learned Executive Magistrate and it has been claimed that the subsequent order dated 22.12.1998 in Misc. Case no. 294 of 1998 was executed when the stay order was in force. This has not been denied in the counter -affidavit of respondent no. 5, and in counter affidavit of respondent nos. 2 to 6 this has not specifically been denied, only mentioning that this is not admitted, but stating that any comment on this would be useless, as pointed out by learned counsel for the petitioner. In that view of the matter also, subsequent order dated 22.12.1998 will not be legal. In the petition it has been stated that stay was granted on 19.2.1999 and it has been contended that when the stay was in force the eviction was carried out.