SATNARAIN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Admittedly proceedings under Section 144, Cr. P. C. were going on between the petitioner and the opposite-party Nos. 2 to 7 in the Court of Sub-divisional Magistrate, Gopalganj. The learned Sub-divisional Magistrate passed an order restraining both the parties to go over the land. During the pendency of the said proceeding a proceeding under Section 188 Cr. P.C. was initiated against the opposite party Nos. 2 to 7 alleging violation of the order passed by the Sub-divisional Magistrate.

(2.) Both the parties put an appearance in the proceeding under Section 188, Cr. P. C and 16-8-1988 was the date fixed. From the order sheet of the trial court it appears that on 18-8-1988 the petitioner filed an application for exemption of his appearance. The application was heard but interim order of the date indicate that no further date was fixed therein. However, the matter was taken up on 26-8-1988 on which date the application under Section 188, Cr. P. C. filed by the petitioner was dismissed. On 2-94988 the petitioner filed an application before the Sub-divisional Magistrate praying for revival of the proceedings as his application was dismissed without hearing him, The application was allowed and the proceeding was revived. On the subsequent date the opposite party Nos. 2 to 7 (second party) filed an application praying therein that the proceeding once dropped could not have been revived. After hearing the parties in the said application, the Sub-divisional Magistrate dismissed the application of the opposite party and found that the proceedings were validly restored. The opposite party Nos. 2 to 7 filed revision against that order which was allowed by the District and Sessions Judge, Gopalganj, vide order dated 10-7-1989 which order had been challenged by the petitioner in this petition filed under Section 482 Cr. P. C.

(3.) I have heard the learned counsel for the petitioner and the Additional Public Prosecutor on behalf of the State opposite party No. 1. The contention of the learned counsel for the petitioner is that in the order dated 18-8-1988 there was a mistake on the part of the Court as the order did not indicate future date of hearing and in this situation the subsequent order passed by the learned Sub-divisional Magistrate on 26-8-1988 without hearing the petitioner was bad and as such the proceeding was rightly revived by the learned Sub-divisional Magistrate on the application filed by the petitioner. The learned counsel maintained that the learned District and Sessions Judge was in error in holding that the learned Sub-divisional Magistrate had no power to recall the order.