CHAMRU MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application for quashing the order dated 6.1.2005 passed by learned Additional Sessions Judge -cum -F.T.C. No. 5, Khagaria in Cr. Revision No. 74/03, by which he affirmed the order dated 2.5.2003 passed in Misc. Case No. 20(M)2/97 whereby and whereunder the learned Sub - Divisional Magistrate, Khagaria had passed order regarding restoration of possession of the land in dispute.

(2.) IT appears that the petitioner was second party to the proceedings under Section 145 of the Code of Criminal Procedure (in short as the 'Code ') whereas one Dayanand Prasad was first party to the proceeding. The land in dispute was plot no. 3580 under khata no. 725 area 14. katha 4 dhurs. The said proceeding under Section 145 of the Code was initiated in Case No. 455(M)/86. Both the parties in the said proceeding filed their show cause and adduced evidence and the learned Executive Magistrate by order dated 7.10.1994 declared the possession of the first party over the land in dispute. The heirs of Dayanand Prasad filed Misc. Case No. 20(M)2/97 before the Sub -Divisional Magistrate, Khagaria that though the possession of Dayanand Prasad who was husband of petitioner no. 2 and father of petitioner nos. 3 and 4 was declared but the present petitioner i.e. 2nd party to the proceeding was in possession over the land in dispute and so he did not prefer any revision against the final order dated 7.10.1994. The heirs of Dayanand Prasad asserted in Misc. Case No. 20(M)2/97 that during the pendency of the proceedings the 2nd party to the proceeding dispossessed Dayanand Prasad forcibly of which information was given to the court in writing on 16.6.1990, 10.7.1992, 20.9.1992 and 5.4.1993 but in spite of that the learned Magistrate after considering all the materials declared the possession of first party Dayanand Prasad over the land in dispute. The learned Magistrate heard both the parties of Misc. Case No. 20(M)2/97 and by impugned order dated 2.5.2003 ordered restoration of possession in favour of heirs of Dayanand Prasad. Against the said order dated 2.5.2003, the petitioner preferred Cr. Revision No. 74/03 before the District & Sessions Judge, Khagaria. The matter was finally heard and disposed of by learned Addl. Sessions Judge -cum -F.T.C -5 who affirmed the order of Magistrate and dismissed the re vision. Against the said order of dismissal the petitioner has preferred the present application before this Court.

(3.) IT was argued on behalf of the petitioner that the original proceeding was disposed of on 7.10.1994 and thereafter the learned Magistrate became functus officio and so he cannot direct restoration of possession after lapse of about three years as the Misc. Case was filed on 12.11.1997. In this connection he also argued that according to Section (sic ''Article ?) 137 of the Limitation Act where no limitation is prescribed for a particular proceeding, in that case the limitation would be three years. So he argued that the order of learned Magistrate is without jurisdiction.