JAMUNA PRASAD SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The first party in a proceeding under Section 145 Cr.P.C. being M.R. Case No. 571 of 2003 have prayed for the quashing of the order dated 6.11.2006 passed therein by Sri Lalit Narayan Dubey, Executive Magistrate, Rosera, whereunder he added the State of Bihar as a party to the proceeding as also order dated 29.12.2006 passed by Sri Birendra Kumar, Sessions Judge, Samastipur, in Cr. Misc. No. 152.

(2.) It appears that on the basis of a police report dated 25.8.2003, a proceeding under Section 144 Cr.P.C. being M.R. No. 571 of 2003 was initiated and both parties appeared and filed their respective show cause alongwith relevant documents. Subsequently, the said proceeding was converted into a proceeding under Section 145 Cr.P.C. The said proceeding was finally disposed of on 1.3.2005 wherein the Sub- Divisional Magistrate found the possession of the petitioners over 4 kathas of land of the disputed plot and he permanently restrained the second party from interfering with the peaceful possession of the petitioners over the said 4 kathas of land. The second party preferred Cr. Revision No. 147 of 2005 on the ground that no details of the said 4 kathas of land and their location had been given in the said order of the learned Magistrate. The said revision was allowed by order dated 24.8.2006 and setting aside the order the learned Sessions Judge directed the learned Magistrate to give opportunity to the petitioners to cross- examine the witnesses produced by the first party and that the proceeding should be concluded within three months and the matter was remitted back to the Sub-Divisional Magistrate. It further appears that on 16.10.2006 the second party filed a petition before the Magistrate to implead the State of Bihar as a party to the proceeding and notwithstanding the objection raised by the first party and the case pending in the personal file of the Sub-Divisional Magistrate, on 6.11.2006 Sri Lalit Narayan Dubey, Executive Magistrate, Rosera, allowed the petition of the second party Cr. Revision No. 152 of 2006 was preferred against the said order which was dismissed by Sri Birendra Kumar, the learned Sessions Judge vide his order dated 29.12.2006 on the ground that the said order was an interlocutory order which would not affect any substantial right of the parties.

(3.) Assailing the impugned orders of the courts below, it was submitted on behalf of the petitioners that the petitioners of the present application have claimed only 4 kathas of land in their exclusive possession and the State of Bihar has no concern with the same, and as such, there was no requirement at all to add the State of Bihar as a party to the lis. The bona fides of the order of the learned Magistrate, Sri Dubey, has also been questioned on the ground that he not being in seisin of the case was not competent to dispose of the petition filed for adding the State of Bihar as a party to the litigation. It has next been submitted that the lands in question being homestead land of the petitioner on which Pacca house, Sahan and garden of the petitioners are situated and in that view of the matter, no proceeding under Section 145 Cr.P.C. was maintainable. In support of the submissions reliance was placed on the decision of Dilip Poddar V/s. State of Bihar, 2001 3 PLJR 471.