MOHD. MUNNVAR KHAN Vs. STATE AND OTHERS

JUDGEMENT

(1.) Instant petition under section. 482, Cr. P.C. has been filed by petitioner assailing order dated 11.2.1994 (Annexure 4) of Additional District Magistrate, Jaipur City who kept in abeyance order dated 7.2.1994 (Annexure 3) of restoring possession of the disputed plot and order dated 28.3.1997 whereby Special Judge (Prevention of Sati) Jaipur City dismissed Cr. Rev. No. 76/96 as not maintainable.

(2.) Briefly stated facts relevant for present controversy raised in proceedings under section 145, Cr. P.C. are that SHO Police Station Bajaj Nagar, Jaipur filed a complaint on 7.1.1991 before Executive Magistrate stating inter alia that both the parties (petitioner and respondents 2 and 3) were claiming possession over the plot E-23, Madhuban Colony, Tonk Road, Jaipur, as there was apprehension of breach of peace; and thus sought for appropriate action in the matter. Notices were issued of the complaint to petitioner and respondents-both of whom filed their reply there. Respondent No. 1 filed an application under section 146 (1), Crimial P.C. for attachment of plot in question. After hearing the parties and being satisfied upon taking note of material on record, learned Executive Magistrate attached the plot in dispute and SHO PS Bajaj Nagar was appointed as Receiver vide order dated 30.3.1991 (Annexure 1) - in pursuance whereof' possession was taken over by SHO Police Station Bajaj Nagar who nowhere mentioned as to from whom he took the possession - which was set aside by Special Judge (E.C. Act) Jaipur City while allowing Cr. Rev. No. 33/92 vide order dated 4.2.1994 (Annexure 2) and matter was remanded back to the Executive Magistrate for handing over possession of plot in dispute to person from whom it was taken by receiver in accordance with law, in pursuance whereof, SHO Bajaj Nagar was directed vide order dated 7.2.1994 (Annexure 3) to hand over the possession from whom he took but without holding any enquiry, it was handed over to the petitioner; to which respondents 2 and 3 filed application objecting inter alia that without inquiry, possession of plot in dispute cannot be delivered; and after hearing the parties, the Executive Magistrate stayed delivery of possession and issued direction for restoration whereof also vide order dated 11.2.1994 (Annexure 4) in pursuance whereof notice dated 12.2.1994 (Annexure 5) was issued by SHO PS Bajaj Nagar and possession whereof remained in control of Executive Magistrate and has not been handed over to either of parties. Against said order dated 11.2.1994 (Annexure 4), petitioner filed criminal revision petition but it was dismissed by Special Judge (Prevention of Sati), Jaipur City vide order dated 28.3. 1997 (Annexure 6), holding that impugned orders are interlocutory in nature, revision petition under section 397 (2). Crimial P.C. is not maintainable, hence this Misc. petition under section 482, Cr.P.C.

(3.) Bone of contentions advanced by Shri N.A. Naqvi, Counsel for the petitioner is that once possession was handed over to the petitioner in compliance of order dated 4.2.1994. latter order dated 11.2.1994 (Annexure 4) for restoration of possession and notice dated 12.4.1994 (Annexure 5) issued by SHO PS Bajaj Nagar are without authority of law and Executive Magistrate has no competence to re-call the order issued for handing over possession to the petitioner; thus, very action initiated by Executive Magistrate after possession was handed over to the petitioner is without jurisdiction and deserves to be set aside inasmuch as such an action of Executive Magistrate has resulted in clear abuse of process of law. In support of contentions, Counsel placed reliance upon decision of Apex Court in Naresh Vs. State of U.P., 1981 (3) SCC 74 : 1981 (18) ACC 61 (Sum) (SC)