SAUKAT HUSSAIN Vs. MUSTAKIM ANSARI

JUDGEMENT

(1.) Heard Mr. Rajiv Anand, learned counsel appearing for the petitioner and Mr. S.N. Rajgarhia, learned counsel appearing for the opposite parties.

(2.) The petitioner is the first party in a proceeding under section 145 Cr. P. C. is aggrieved by that part of the impugned order dated 20-8-2002, passed by the Sub- Divisional Magistrate, Lohardaga wherein while declaring the possession of the lands under proceeding in favour of Madarsa Quasmia, he has declared that Idrish Ansari O. P. No. 2 was the Secretary and Mustakim Anasari O.P. No. 1 was Sardar of the said Madarsa Quasmia.

(3.) The petitioner has challenged the impugned order mainly on two grounds. Firstly, that in a proceeding under section 145 Cr. P. C. the scope of which is only to declare physical possession of either of the parties with respect to the lands under proceeding. In the said proceeding the Magistrate cannot decide the question of right and title of any of the party to the proceeding over the lands under proceeding. It is submitted that in the present case the learned Sub-Divisional Magistrate has declared O.P. Nos. 1 and 2 as Sadar and Secretary of Madarsa Quasmia, which was beyond his Jurisdiction. Secondly, on the ground that since the petitioner had fallen 111, and, as such, he could not attend the case before the Magistrate and, as such, the proceeding was fixed for ex parte hearing and at that stage the second party/opposite parties examined five witnesses. Subsequently, on an application, filed by the first party/petitioner the order for ex parte hearing was recalled by the learned Magistrate and the proceeding was again fixed for hearing. It is submitted that after the ex parte hearing order was recalled, it was incumbent upon the learned Magistrate to recall those five witnesses, who were examined by the second party and to give opportunity to the first party to cross-examine those five witnesses and unless that was done, the Magistrate could not have considered the statement of those five witnesses, who were examined at the stage of ex parte hearing because the petitioner/first party was not afforded any opportunity to cross-examine five witnesses on behalf of the second party/opposite parties.