Madhya Pradesh High Court
Aman vs Nannu (Since Deceased Thr. Lrs. ... on 13 March, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 3443/2019
Aman and another
Vs
Nannu (since deceased thr. Lrs Paramlal)
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Shri R.K. Verma, learned senior counsel with Shri Ram Murti Tiwari,
learned counsel for the petitioner.
Shri Ramshankar Khare, learned counsel for the respondent.
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ORDER
(13.03.2020) This criminal revision under Section 397/401 of Cr.P.C. has been filed by the petitioners/non-applicant to set aside the order dated 16.04.2019 passed by First Additional Sessions Judge, Tikamgarh in Criminal Revision No. 240/2018 whereby the Sessions Judge allowed the revision presented by the respondent and set aside the order dated 17.12.2018 passed by Sub Divisional Magistrate, Baldeogarh, District Tikamgarh in case No. 44/Criminal/145/2018, in which Sub Divisional Magistrate allowed the petition under Section 145(4)(6) Cr.P.C and gave possession to petitioners/non-applicant of the disputed land.
2. Respondents/applicants filed a petition under Section 145(4)(6) of Cr.P.C. of Cr.P.C. it is alleged by them that they are owner of half part of land ad-measuring area 1.619 hectare in Khasra No. 159/2 situated at village Budora, Tehsil Baledeogarh District Tikamgarh. Petitioners/non-applicant were trying to take possession 2 Cr.R. No. 3443/2019 of said land, therefore, there is probability to disturb the peace by them, so action can be taken. Thereafter, Sub Divisional Magistrate found prima facie case and issued notice to the petitioners/non- applicants, after inquiry Sub Divisional Magistrate found that petitioners/non-applicants have possession of disputed land. Therefore, he passed the order in favour of the petitioners/non- applicants. Thereafter respondents filed a criminal revision before First Additional Sessions Judge, Tikamgarh. The Additional Sessions Judge allowed the petition on 16.04.2019 and set aside the order dated 17.12.2018 passed by the Sub Divisional Magistrate, Baldeogarh.
3. Learned counsel for the petitioners/non-applicants submits that the impugned order passed by the learned First Additional Sessions Judge, Tikamgarh is bad in law as same was passed without affording any opportunity of hearing to the petitioners/non-applicants. Learned First Additional Sessions Judge directed to issue the notice to the petitioners/non-applicants for hearing but notice has not been served upon them but service report has been accepted by the learned Judge. Learned counsel for the petitioners submits that petitioners/non-applicants did not sign on that summons or notice, some person has fabricated the signature of petitioners/non-applicants, moreover the petitioner No.1/Aman puts thumb impression due to his illiteracy. Therefore, impugned order deserves to be quashed. Apart from this, it is crystal clear that the disputed land was settled by the State Government in favour of petitioner's father on 23.01.1976, since then the petitioners and their father have been cultivating the said land. Respondents are interfering 3 Cr.R. No. 3443/2019 in their possession. The matter traveled upto this Court and the Additional Commissioner passed the detailed order in favour of petitioners/non-applicants on 20.12.2016. The respondents are moving applications one after other and making false complaints against the petitioners/non-applicants and also making all possible efforts to take the possession. The Sub Divisional Magistrate passed the order on 17.12.2018 on the basis of fact and legal principle of law. Therefore, there is no material available on the record on which learned First Additional Sessions Judge could interfere the order, so order of learned First Additional Sessions Judge is erroneous and unjustifiable, Therefore, learned counsel for the petitioners/non- applicants prays for allowing this petition and set aside the order dated. 16.04.2019.
4. Learned counsel for the respondents opposes the submissions made by learned counsel for the petitioners and submits that the order passed by the learned First Additional Sessions Judge is based upon the fact and legal principle of law, therefore, no interference is warranted in the impugned order because disputed land was allotted to them by State Government.
5. Heard both the parties and perused the records.
6. On perusal of record, it is evident that respondents/applicant filed a criminal revision against the order dated 17.12.2018 passed by Sub Divisional Magistrate, Baldeogarh. It is undisputed that the Sub Divisional Magistrate affirmed the possession of petitioners on the disputed land. Learned First Additional Sessions Judge issued the notice for hearing to the petitioners and case was 4 Cr.R. No. 3443/2019 fixed on 25.01.2019. On 25.01.2019, learned First Additional Sessions Judge again directed to issue the notice to the petitioners and case was fixed on 12.02.2019, but on the said date counsel abstained from his work. Therefore, parties did not appear in person before the Court. It is mentioned in the order sheet dated 12.02.2019 that respondents/applicants did not comply with the previous order and also mentioned that the notice has been served upon the petitioners/non-applicants. Therefore, learned First Additional Sessions Judge proceeded to here the case case ex-parte against the petitioners and the Sessions Judge directed to call the record. Thereafter on 11.04.2019, arguments were heard and on 16.04.2019 the Court passed the order.
7. It is undisputed that notice of petitioner is annexed in the record of Revisional Court. It is also undisputed that petitioner No.2 Dayaram did not receive any notice, although it is alleged that petitioners received notice. It is argued by the petitioners/non- applicants that petitioner No. 1/Aman is illiterate person, he puts thumb impression and does not know how to sign, so the signature of petitioner No.1 on notice dated 12.02.2019 is fabricated. It is evident from the record of Courts below that petitioner No.1 puts thumb impression. Petitioners/non-applicants were appearing in the proceeding under Section 145(4)(6) of Cr.P.C. on each and every date and petitioner No.1 puts thumb impression on order sheets. So it is crystal clear that petitioner No.1-Aman is illiterate person and he is unable to sign, therefore, the alleged signature of petitioner on disputed summons of notice is prima facie found to be false. So the submissions of petitioners that they did not receive any notice in 5 Cr.R. No. 3443/2019 proceeding of Revisional Court appears to be true. Therefore, it is evident that the learned First Additional Sessions Judge passed the order without hearing the petitioners
8. In the case of the Hon'ble Apex court in the case of Uma Nath pandey and others Vs. State of U.P. and another reported in (2009) 12 SCC 40 has held as under:-
"3. "7. The crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, to what extent any prejudice has been caused. It may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, 'useless formality theory' can be pressed into service.
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10. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the 'Magna Carta'. The classic exposition of Sir Edward Coke of natural justice requires to 'vocate, interrogate and adjudicate'. In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414] the principle was thus stated:
'[E]ven God himself did not pass sentence upon Adam before he was called upon to make his defence. "Adam" (says God), "where art thou?6 Cr.R. No. 3443/2019
Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?".' Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
"11. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice."
4. Above being the position, we set aside the impugned order and remit the matter to the High Court to consider the matter afresh after issuance of notice to the respondents in Criminal Revision Petition No. 2163 of 2007 which will stand restored. The appeal is allowed.
9. So it is clear that opportunity of hearing is necessary for the petitioners. Petitioner produced the material evidence before Sub Divisional Magistrate and the Magistrate passed the order in favour of petitioners. Therefore, only this ground, this Court is of the view that interference is warranted in the impugned order. Therefore without commenting on merit of the case, the order dated 16.04.2019 passed by First Additional Sessions Judge, Tikamgarh in Criminal Revision No. 240/2018 is set aside and the case is remanded back to the Revisional Court to pass the order after giving adequate opportunity of hearing to all the parties. Parties are directed to appear before Revisional Court on dated 20.04.2020.
10. Accordingly, this criminal revision is Disposed of.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.03.18 17:01:55 +05'30'