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 ---------------- O R D E R 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. - 2 - 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. - 3 - 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 - 4 - 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 - 5 - 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.