IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1055 of 2009 SALIMAN KHATOON Versus STATE OF BIHAR & ANR ----------- 4. 23.7.2010. Heard. The petition has been filed for quashing the orders passed by the S.D.M., Chakia, district-East Champaran in Case No.462M of 2001(Tr.No.2 of 2003) as also the order passed by the Additional District & Sessions Judge, Fast Track Court No.2, Motihari, District-East Champaran in Cr.Revision No.12/33 of 2006 on 18.9.2008. The learned S.D.M., Chakia passed the impugned order declaring Yogendra Sah, Opposite Party no.2 in the above case, being in possession either on the day on which the order under Section 145(1)Cr.P.C. was drawn up or two months prior to that date on the disputed area of 19 dhurs of plot no.99, Khata No.125, situated at village-Chakia Tola Ahiraulia, P.S.- Chakia, District-East Champaran. That particular order passed by the S.D.M., Chakia was affirmed by the Revsional Court in the above noted revision petition by order dated 18.9.2008. Both the parties claimed part of the - 2 - area of plot no.99 under Khata no.125, the petitioner claimed one Katha, 10 Dhurs of the land out of the above noted plot through a registered deed of transfer dated 10.1.2008. Incidentally there was an error which crept into the above noted deed as the plot number and the khata number both were wrongly mentioned in it. Subsequently during the pendency of the proceedings before the Executive Court a rectification deed was brought into existence by the parties and the error was rectified. The Opposite Party also claimed an area of 2 Katha 16 and half Dhurs of land from east out of the total area of the same plot which was 6 Katha 16 Dhurs. As both the parties were found claiming the areas of the plot but from the some direction, the police made a report and on that basis 144 Cr.P.C. proceedings was initiated which ultimately was converted into a proceeding under Section 145 Cr.P.C. The parties appeared and filed their respective written statements. While appreciating the evidence of the parties, what appears done by the learned S.D.M., Chakia is that while the evidence of six witnesses of the - 3 - Opposite Party no.2, was found by him trustworthy and supporting the claim of possession of Opposite Party no.2 and that finding was recorded in one line as may appear from the impugned order. He did not go into the details of the evidence of those witnesses of the Opposite Party and simply stated that they were supporting the claim of his. So far as the appreciation of the evidence of witnesses who were examined on behalf of the petitioner was concerned, the learned Executive Magistrate went into full details of their evidence and even went on such aspects of the evidence, which could not be relevant for marshalling of facts and held each of them not reliable. Not only that, what was further done by the Executive Magistrate was that he was recording a wrong fact which was never stated by a witness like D.W.3 Umesh Prasad Singh as regards the delivery of possession on sale of the land to him by his uncle and father. If this could be the approach of a court in appreciating evidence and if it is found that the appreciation was completely erroneous, may be with some purpose, then it is a question of law as wrong appreciation of - 4 - evidence has been always held to be an illegality which affects the proceedings. This court would not have interfered with the orders simply for the reason that the order of the original court of jurisdiction was confirmed by the order passed by the Revisional Court and that could have been final. But finding that, it could be an exceptional case which could be inflicting deep injustice upon the petitioner account of the misappropriation of the facts, the court has decided to interfere with the orders passed by both the courts below. After being taken through the evidence of the parties and after going through the order passed by the S.D.M., Chakia what this court finds is that the order was passed completely on wrong and incorrect reading of the evidence. It appears to this court that the learned Executive Magistrate was probably pre-determined to pass a particular order as such he was making misstatement of an evidence. It is most unfortunate and this aspect of the matter has catalyzed this cour’t sensitively to interfere with the matter in exercise of its exceptional - 5 - jurisdiction under Section 482 of the Cr.P.C. In the result, the two orders passed by the court below are hereby quashed. The matter is hereby remitted back to the S.D.M., Chakia for re- hearing from the stage of hearing arguments by reading evidence properly so that he could pass an order within a month either of receipt by him or production of a copy of the present order before him. The petition is allowed in the above terms. B.Kr. ( Dharnidhar Jha, J. )