Jharkhand High Court
Bishwanath Sah @ Mandal And Ors. vs The State Of Jharkhand And Ors. on 16 August, 2003
Equivalent citations: 2003(3)BLJR2062, 2004 CRI LJ (NOC) 72, 2004 AIR - JHAR. H. C. R. 499 2003 BLJR 3 2062, 2003 BLJR 3 2062
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
JUDGMENT Amareshwar Sahay, J.
1. Heard the parties.
2. In this application the petitioners have prayed for quashing of the order dated 3rd July, 2002 passed by the 1st Additional Sessions Judge, Godda in Criminal Revision No. 12 of 2002 whereby the learned Additional Sessions Judge, set aside the order dated 17-1-2002 passed by the S.D.M., Godda in T.R. Case No. 4 of 2001.
3. On the basis of an application filed by the First Party-Opposite Parties, a proceeding under Section 144 Cr. P.C. was initiated and subsequently converted into a proceeding under Section 145 Cr. P.C. with respect to bona fide dispute with regard to possession of the land in dispute between the parties. Both the parties on receipt of notices under Section 145 Cr. P.C. filed their respective written statements.
4. On 7-7-2001, an application was filed by the Second Party-Petitioners to drop the proceeding on the grounds mentioned in their application. The First Party-Opposite Parties filed rejoinder objecting to the petition filed by the Second Party-Petitioners for dropping the proceeding. The learned S.D.M., Godda after hearing the parties, by an order dated 17-1-2002 held that after the death of Jamabandi Raiyat Baijnath Mandat, all his movable and immovable properties were inherited by his widow and during the 'Khanapuri' in place of the name of Jamabandi Raiyat Baijnath Mandal, the name of his widow Deepavali was recorded which was confirmed in appeal by the Charge Officer, Dumka also by order dated 7-5-1997. Since the final order was already passed by the Settlement Court with respect to the land dispute, which has the force of a decree of a civil Court and, therefore, the proceeding under Section 145 Cr. P.C. was not maintainable and, as such, he further held that from the report of the Executive Magistrate and Circle Officer, Godda, it was established that the members of the Second Party-Petitioners were in possession of the lands in dispute even since prior to initiation of the proceeding under Section 145 Cr. P.C. and thereby dropped the proceeding under Section 145 Cr. P.C.
5. Being aggrieved by the order of the learned S.D.M. dropping the proceeding, the First Party-Opposite Parties filed Cr. Rev. No. 12 of 2002 before the Sessions Judge, Godda, who vide the impugned order dated 3-8-2002 allowed the Revision and set aside the order of the learned S.D.M. and remanded the matter back to him for a fresh decision after conclusion of the proceedings by giving proper opportunities to the parties to adduce evidence and of hearing. The learned Revisional Court held that once the proceeding under Section 145 Cr. P.C. was initiated then unless there is a clear evidence to show that the dispute has ceased to exist the Magistrate cannot drop the proceeding under the provisions of Section 145(5) Cr. P.C. It was further held that after initiating the proceeding under Section 145 Cr. P.C., the Magistrate has to continue with the proceeding and it is to be carried to the logical end leading to the final order and it is not necessary that the breach of peace should continue at every stage of the proceeding.
6. Against the aforesaid order of the Revisional Court, the Second Party-Petitioners have preferred this application.
7. The learned counsel forthe petitioners has submitted that after the notification under Regulation 9 of the Santhal Pargana Settlement Regulation, 1872, the Settlement Court is vested with the power of civil jurisdiction pursuant to Section 5 and 11 of the said regulation and the finding arrived at by the said Settlement Court has the force of a decree and thus a proceeding under Section 145 Cr. P.C. could not have been initiated and, therefore, the order for dropping the proceeding under Section 145 Cr. P.C. after finding that the Second Party-Petitioners were already in possession over the lands in question was fully justified. In support of his contention he has relied on a decision in the case of Jai Prakash Rai v. Bans Lal and Ors. reported in 1977 BBCJ 626. On the other hand, Mr. Rajiv Sharma, learned counsel appearing for the Opposite Parties, has submitted that the finding with regard to possession over the disputed lands by the learned S.D.M. was absolutely bad as without giving a chance to the parties to lead evidence in support of the case, no finding on possession could have been arrived at in the midst of the proceeding. He further submitted that the learned S.D.M. has himself mentioned in the order that the members of the First Party-Opposite Parties were trying to disturb the possession of the Second Party-Petitioners and, therefore, there was dispute with regard to possession over the lands in question and, as such, the said proceeding could not have been dropped by the learned S.D.M. in exercise of the power under Section 145(4) of the Cr. P.C.
8. Regulation 9 of Santhal Pargana Settlement Regulation, 1872 speaks about the power of the Government to order settlement to be made of the whole or any part of Santhal Parganas for the purpose of ascertaining and recording various interests and rights in the lands. The decision cited by the learned counsel for the petitioners in this regard i.e. the case of Jai Prakash Rai v. Bans Lal and Ors. reported in 1979 BLJR 761; 1977 BBCJ 626. I find that in this case, the Patna High Court was considering the matter regarding Section 48-E of the Bihar Tenancy Act which provides a procedure for prevention of threatened ejectment of under Raiyat and restoration to possession of an under Raiyat unlawfully ejected. The Patna High Court held that during the pendency of the proceeding under Section 48-E of the Bihar Tenancy Act, no Court either civil of criminal has any jurisdiction and, as such, no proceeding under Section 145 Cr. P.C. can be drawn during the pendency of the proceeding under Section 48-E of the Bihar Tenancy Act.
9. Therefore, the question before the Patna High Court in the case of Jai Prakash Rai v. Bans Lal and Ors. (supra) was quite different and as such the said decision is not at all applicable in the facts and circumstances of the present case.
10. I find force in the submissions of the learned counsel forthe Opposite Parties and hold that the learned Sub-divisional Magistrate has gone beyond his jurisdiction in giving a finding with regard to possession in favour of the Second Party-Petitioners without giving any opportunity to the parties to lead evidence in support of their claim regarding possession. I further hold that the order dropping the proceeding under Section 145 Cr. P.C. by the learned S.D.M. to be bad in law in absence of any report that the dispute ceased to exist.
11. The learned Revisional Court rightly set aside the order of the learned S.D.M. and remanded the matter to the trial Court for a fresh decision after giving opportunity to the parties to lead evidence and after hearing to both the parties.
12. In the result, I do not find any merit in this application. It is, accordingly, dismissed.