Patna High Court - Orders
Jamuna Prasad Sinha & Ors vs The State Of Bihar & Ors on 25 June, 2009
Author: Abhijit Sinha
Bench: Abhijit Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.17876 of 2007
1. Jamuna Prasad Sinha. Son of Munsi Prasad Sinha
2. Jawahar Prasad Sinha, Son of Jamuna Prasad Sinha
3. Ram Kumar Prasad Sinha, Son of Jawahar Prasad Sinha
4. Shiv Kumar Sinha, Son of Jawahar Prasad Sinha
All resident of Village-Fattepur, P.S. Rosera, District-
Samastipur -------------- Petitioners
Versus
1 THE STATE OF BIHAR
----------------- Opp.Ist Party
2 Raj Kumar Mandal, Son of Late Mukti Mandal
3 Mukhalal Mandal of Late Kallar Mandal
4 Sattan Mandal son of Mukhalal Mandal
5 Chhrpan Mandal, Son of Bhola Mandal
6 Nathni Mandal Son of Late Uchit Mandal
7 Rajeshwar Mandal, Son of Late Mahavir Mandal
8 Laxmi Mandal, Son of Rajeshwar Mandal
9 Kishun Mandal, Son of Late Jaduni Mandal
All resident of Village- Fattepur, P.S. Rosera, District-
Samastipur,Bihar ------- Opp.2nd Party
10. Ram Narain Mandal, Son of Late Dorik Mandal, resident of
Village-Fattepur, P.S. Rosera, District-Samastipur
----------------- Opp. 3rd Parties.
-----------
For the petitioners : Mr. B.N.Sinha "Suman", Advocate
For the State : M/S Jharkhandi Upadhaya, A.P.P.
For Opp.Party no.2 : Mr. Uma Shankar Singh No.2,
Mr. Krishna Prasad Sinha No.2
----------------
ORDER
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
of 2006, by which he refused to interfere with the order of the learned
Executive Magistrate dated 6.11.2006.
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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 along with 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
by order dated 6.11.2006 even as he was not in seisin of the case.
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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.
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 bonafides 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 Vrs.
State of Bihar, reported in 2001(3) PLJR 471.
Reliance of the learned counsel for the petitioners on the
decision of Dilip Poddar ( Supra) is not applicable to the instant case
since in Dilip Poddar's case , the proceeding under Section 145
Cr.P.C. was in respect of a fight between the parties regarding right of
possession and right of title over the property in question which was a
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residential house only. This is not the situation in the instant case as
apart from the pacca house referred to there is also Sahan and garden
which is involved in the proceeding. Therefore, in my opinion, the
decision of Dilip Poddar's case (Supra) does not come to the rescue of
the petitioners. That apart, this point cannot be raised now since the
petitioners did have the opportunity of raising the same in the earlier
Cr.Revision No.147 of 2005 and as it appears the same was never
raised. Not having raised the issue in the earlier revision the
petitioners cannot be permitted to raise the issue in this application.
So far as the question of adding the State of Bihar as a party
to the proceeding is concerned, it is clear from the order of the learned
Magistrate regarding the necessity of adding the State of Bihar as a
party thereto and I see no scope to differ from the order since reasons
assigned by the learned Magistrate are cogent enough.
Now regarding the jurisdiction of Sri Lalit Narayan Dubey
passing the impugned order the finding of the learned Sessions Judge
that the order is interlocutory also appears to be correct. Addition of
the State of Bihar as a party to the litigation , in my opinion, does not
substantially affect the right of any of the parties and as a matter of
fact would be a vital factor in judiciously disposing of the dispute
involved in the proceeding concerned.
Sub section (2) of Section 397 Cr.P.C. prohibits any
exercise of the powers of revision in interlocutory orders. Admittedly,
the expression "interlocutory order" has not been defined in the statute
books. However, the definition is available from judicial decisions and
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it is now well settled that in deciding whether an order challenged is
interlocutory or not in the light of Section 397(2) Cr.P.C. . the sole
test is whether such order was passed during the interim stage and
whether by upholding the objection raised by a party it would result
in culminating the proceeding. Gainful reference may be made to the
case of Amar Nath Vrs. State of Bihar ( AIR 1977 SC 2185), Madhu
Limaye Vrs. State ( AIR 1978 SC 47), K.K.Patel Vrs. State of Gujrat
( 2000)6SCC 195 and Bhaskar Industries Ltd. Vrs. Bhiwani Denim,
reported in ( 2001) SCC 401.
In view of the discussions made in the foregoing paragraphs
I find no apparent reason to interfere with the orders impugned.
Accordingly, there being no merit in this application, the same is
dismissed.
( Abhijit Sinha, J )
Patna High Court,Patna
Dated : the 25th June,2009
Nawal Kishore Singh/A.F.R.