CHOTE LAL YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) The instant petition has been filed under Sec. 482 of the Code of Criminal Procedure ( in short 'Cr.P.C.') with a prayer to quash the order dtd. 1/2/2016 passed by learned 6th Additional Sessions Judge, Nalanda at Biharsharif in Cr. Rev.No. 519 of 1993 whereby and whereunder the order dtd. 2/12/1993 passed under Sec. 145 of Cr.P.C. declaring the possession of Second Party (Opposite Parties) over the land in question by the Executive Magistrate, Nalanda at Biharsharif in the Case No. 804(M.P.)/1993 has been affirmed by dismissing the revision application preferred by the petitioners (first party).

(2.) Mr. Sidhendra Narayan Singh, learned counsel appearing for the petitioners who were first party before the court of Executive Magistrate in the Case No. 804 (M.P.)/1993 submits that the learned Executive Magistrate in his order dtd. 2/12/1993 not only declared the possession but also declared the title of the second party, who are here Opposite Parties in the proceeding initiated under Sec. 145 of Cr.P.C. which is wholly without jurisdiction and in this regard, the findings given by the learned Executive Magistrate in his order dtd. 2/12/1993, may be perused. The petitioners (first party) initially preferred Cr. Rev. No. 519 of 1993 on 16/12/1993 making all three second parties as opposite party and the revisional court set aside the order dtd. 2/12/1993 in that revision of which order's copy has been filed as Annexure-3 holding therein that the order dtd. 2/12/1993 was wholly without jurisdiction. Though the original order passed under Sec. 145 of Cr.P.C. was in the favour of all the three second parties and the revisional court's order dtd. 4/8/2009 was against all of them but out of them, only two second parties (Opposite Parties) namely, Ran Bijay Prasad and Raj Kumar Prasad had challenged that revisional court's order before this Court without making the third Opposite party namely, Laxmi Kant Prasad as a party in Criminal Revision No. 459 of 2010 due to which it can be deemed that the order dtd. 4/8/2009 of the revisional court attained finality so far as in favour of the first parties as against the O.P. No. 4, namely, Laxmi Kant Prasad Singh and the Cr. Rev. No. 459 of 2010 was not maintainable due to non-joinder of the necessary party (O.P. No.4), however, that revision was dismissed on 20/1/2013 for want of prosecution but the same was restored vide order dtd. 25/10/2013 but without any notice or information to the petitioners who were opposite parties in that revision petition and thereafter, the matter was remanded back on technical ground for afresh decision mainly considering that the documents filed by the first parties (petitioners) did not contain exhibit numbers and in this regard, the order dtd. 25/10/2013 filed as Annexure-5 may be perused and further, when the matter was again heard by the revisional court, the case record of Executive Magistrate's court was not available before the revisional court as all the exhibit documents as well as File-A and File-B of the said case record had been eaten by termite (deemak) and the same were in torn condition and in this regard, Annexure-7, a letter, sent to the revisional court by the concerned court may be perused which shows that the revisional court passed the impugned order in the absence of the evidences adduced by both the sides before the court of Executive Magistrate. He further submits that the original order dtd. 2/12/1993 clearly goes to show that the documents filed by the first party/petitioners were not properly considered and exhibited which shows the prejudicial approach of the said court. He further submits that from the first paragraph of the original order dtd. 2/12/1993, it is clearly evident that in between both the parties there was a dispute of title and possession over the land in question during the relevant period of time which cannot be decided by an Executive Magistrate while exercising his power under Sec. 145 of Cr.P.C. and in this regard, the principle laid down by this Court in the case of Dilip Poddar vs. State of Bihar & Ors. reported in 2001 (3) PLJR 471 is relevant. He lastly submits that the initiation of the proceeding under Sec. 145 of Cr.P.C. in respect of the disputed land by the Executive Magistrate was completely without jurisdiction as over the disputed land there were residential structure as well as commercial shops and in this regard, the evidence of the witnesses produced and examined by the second party before the court of learned Executive Magistrate which has been discussed in the original order dtd. 2/12/1993, may be perused. In support of this submission learned counsel has referred to the judgment of this Court passed in the case of Dilip Poddar (supra) and also placed reliance on the judgment of this Court passed in the case of Netlal Rai vs. State of Bihar reported in 2017 (4) pljr 606 and the relevant paragraph nos. 6 and 7 upon which reliance has been placed, are being reproduced as under :-

(3.) Per contra, Mr. Prem Chand Yadav, learned counsel appearing for the O.P. No.2 to 4 argued that as per Sec. 145(2) of Cr.P.C. the expression "Land or Water" mentioned in sub-Sec. (1) of Sec. 145 of Cr.P.C. includes buildings, markets, fisheries, crops or other produce of land, so, if on some part of the disputed land there was a building either in the form of residential house or shop then merely by this fact, the jurisdiction conferred upon an Executive Magistrate by virtue of Sec. 145 of Cr.P.C. does not oust, while in the instant matter, the area of the disputed land is 23 dismil and the alleged huts and shops do not cover the entire land and only a little portion of the said land was covered by the said buildings when the proceeding under Sec. 145 of Cr.P.C. was initiated. He further submits that the proceeding under Sec. 145 of Cr.P.C. was initiated in the year 1987 and the original order in the said proceeding was passed on 2/12/1993 and the actions under Sec. 145 of Cr.P.C. are in the nature of emergency to prevent the possibility of breach of peace and the proceeding under the said Sec. initiated in the present matter must be treated to be closed on account of the lapse of considerable period from the date of its inception, so, after the lapse of more than 30 years from the inception of the proceeding under Sec. 145 of Cr.P.C., there is no need to decide the legality of the initiation of the said proceeding as well as the merit of the original order as the purpose to initiate the said proceeding has already been served and all the litigations relating to the said proceeding must be treated as being closed and in this regard, the observation made by the Hon'ble Division Bench of this Court in the judgment passed in the case of Ram Chandra Rai & Ors. vs. The State of Bihar & Ors. reported in 1991 (1) pljr 36 is relevant.