Criminal Miscellanious No.2604 OF 1997 Against the order dated 22.06.1999, passed by the learned Executive Magistrate, Daudnagar, in Case No. 447 of 1996 under section 145 of the Code of Criminal Procedure. ------- 1. SMT. BINDBASANI DEVI WIFE OF LATE TARKESHWAR PRASAD. (1A) BINDESHWAR PRASAD SRIVASTAVA SON OF LATE TARKESHWAR PRASAD 2. SIDHESHWAR PRASAD SON OF LATE KAPILESHWAR PRASAD. 3. SHASHI BHUSHAN KUMAR 4. PRAVIN KUMAR 5. SHRAWAN KUMAR, SONS OF KAMLA PRASAD. 6. SANDHYA DEVI WIFE OF SHASHI BHUSHAN PRASAD 7. SAPNA DEVI WIFE OF PRAVIN KUMAR 8. RAJESHWAR PRASAD SON OF SRI SHANKAR PRASAD 9. ANIRUDDH PRASAD 10. RAM NARESH PRASAD 11. SHANKAR PRASAD, SONS OF CHHATTHAN PRASAD, ALL RESIDENTS OF BHAKHARUA MORE, DAUGNAGAR, POLICE STATION AND POST OFFICE DAUDNAGAR, DISTRICT AURANGABAD. Versus 1(A) MIT RAJ YADAV SON OF LATE SARJU YADAV 1(B) MARCHHI DEVI DAUGHTER OF SARJU YADAV 1© ANCHHI DEVI DAUGHTER OF LATE SARJU YADAV 1(D) DHANPATIA DEVI DAUGHTER OF LATE SARGU YADAV 2. GANAURI YADAV SON OF LATE RAM LAL YADAV 3. RAM BALI YADAV SON OF LATE RAM LAL YADAV, ALL RESIDENTS OF BHAKHARUA MORE, DAUDNAGAR, P.S. AND POST OFFICE DAUDNAGAR, DISTRICT AURANGABAD. 4. AMARESH SHANKAR SON OF DR. RAMA SHANKAR PRASAD, C/O LATE DR. R.S.P. VERMA, MOHALLA SHEOPUR, POST OFFICE MAHENDRU, PATNA, DISTRICT PATNA. 5. NARAYAN PRASAD TANTI SON OF LATE LOCHAN RAM, RESIDENT OF MOHALLA PATWA TOLI, POST OFFICE AND POLICE STATION DAUDNAGAR, DISTRICT AURANGABAD. 6. VIJAY KUMAR TANTI SON OF LATE LOCHAN RAM, RESIDENT OF MOHALLA PATWA TOLI, P.O. AND P.S. DAUDNAGAR, DISTRICT AURANGABAD. with Cr.Misc. No.22847 oF 1999 1(A) SMT. BINDBASANI DEVI WIFE OF LATE TARKESHWAR PRASAD. - 2 - (1B) BINDESHWAR PRASAD SRIVASTAVA SON OF LATE TARKESHWAR PRASAD 2 SIDHESHWAR PRASAD SON OF LATE KAPILESHWAR PRASAD. 3 RAJESHWAR PRASAD SON OF SRI SHANKAR PRASAD 4. ANIRUDH PRASAD 5. RAM NARESH PRASAD 6. SHANKAR PRASAD, SONS OF CHHATTHAN PRASAD, ALL RESIDENTS OF BHAKHARUA MORE, DAUDNAGAR, P.O. AND P.S. DAUDNAGAR, DISTRICT AURANGABAD. 7. AMARESH SHANKAR SON OF DR. RAMA SHANKAR PRASAD C/0 LATE DR. R.S.P. VERMS, MOHALLA SHEOPUR, P.O. MAHENDRU, PATNA, DISTRICT PATNA. 8. NARAYAN PRASAD TANTI 9. VIJAY KUMAR, BOTH SONS OF LATE LOCHAN RAM, RESIDENTS OF MOHALLA PATWA TOLI, P.O. AND P.S. DAUDNAGAR, DISTRICT AURANGABAD. Versus 1(A) MIT RAJ YADAV SON OF LATE SARJU YADAV 1(B) MARCHHAI DEVI DAUGHTER OF SARJU YADAV 1(C) ANCHHI DEVI DAUGHTER OF LATE SARJU YADAV 1(D) DHANPATIA DEVI DAUGHTER OF LATE SARGU YADAV 2. GANAURI YADAV SON OF LATE RAM LAL YADAV 3. RAM BALI YADAV SON OF LATE RAM LAL YADAV, ALL RESIDENTS OF BHAKHARUA MORE, DAUDNAGAR, P.S. AND POST OFFICE DAUDNAGAR, DISTRICT AURANGABAD. 4. SHASHI BHUSHAN KUMAR 5. PRAVIN KUMAR 6. SHRAWAN KUMAR, ALL SONS OF KAMLA PRASAD 7. SANDHYA DEVI WIFE OF SHASHI BHUSHAN PRASAD 8. SAPNA DEVI WIFE OF PRAVIN KUMAR, ALL RESIDENTS OF BHAKHARUA MORE, DAUDNAGAR, P.S. AND P.O. DAUDNAGAR, DISTRICT AURANGABAD. 9. THE STATE OF BIHAR. ------ FOR THE PETITIONERS: MR. SHASHI SHEKHAR DVIVEDI, SENIOR ADVOCATE WITH MR. RAVI SANKAR DVIV EDI, ADVOCATE. FOR THE OPPOSITE PARTIES: MR. VINAY KIRTI SINGH, ADVOCATE. ---- P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha, J Heard Mr. Shashi Shekhar Dvivedi, learned senior counsel for the petitioners and Mr. Vinay Kirti Singh, learned counsel for the - 3 - opposite parties in both the cases. 2. In the first case bearing Cr. Misc. No. 2604 of 1997, the petitioners, second party in a proceeding under section 144 of the Code of Criminal Procedure, hereinafter referred to as Cr.P.C., have assailed an interim order dated 14.08.1996, converting the said proceeding into one under section 145 Cr.P.C. This Court at the stage of admission, vide an order dated 22.07.1997 had issued notice to the opposite parties, the first party, and had also passed an interim order, staying the further proceedings in the court below. 3. In the second case i.e. Cr.Misc. No. 22847 of 1999 the same petitioners have assailed the final order dated 22.06.1999 under Section 145 Cr.P.C. declaring the possession of the opposite parties, the second party in the court below. 4. There is no difficulty in finding from the lower court record, which also has been received pursuant to the order of this Court, that the said stay order was duly communicated with the certificate of the counsel for the petitioners who had filed an application on 01.12.1997 in the court below as is clearly recorded in the order-sheet in form of receiving an application along with the certificate of the counsel for the petitioners. Such application, which now does not have enclosed the certificate of the counsel on record would, however, itself lead to an irresistible conclusion that information with regard to filing the first application by the petitioner before this Court and passing of an order of stay of further proceedings was duly communicated to the concerned court. It, however, appears that either due to oversight and/or otherwise - 4 - the direction of this Court in the order dated 22.07.1997 in the first case of keeping the further proceedings of the case under Section 145 Cr.P.C. stayed till its final decision by this Court despite its being brought to the notice of the Court of Subdivisional Magistrate was not acted upon. The petitioners, the second party, however under bonafide impression that the proceeding had been stayed in view of the order of this Court dated 22.07.1997 had not participated in the said proceeding. 5. It further appears that while the petitioners were absenting themselves in the connected 145 Cr.P.C. proceedings due to their continuing order of stay passed by this Court on 22.07.1997 but the court below had proceeded to examine the witnesses of the opposite parties, first party, in between 02.02.1999 to 08.06.1999 and after their examination-in-chief they were also put to certain questions by the court below. Obviously they were cross-examined by the counsel for the petitioners who in fact had not appeared under the impression that the proceedings had itself been stayed under the interim order of this Court dated 22.07.1997. 6. It also appears that in the meantime the opposite parties had also appeared in the present first case before this Court where-after the first case was placed under the heading “for admission” and the same was admitted by order dated 25.11.1997 by reiterating the earlier order of stay dated 21.07.1997 to be continued during the pendency of the case. It also appears that despite the said stay order well known to the opposite parties, the court below had passed its final order under section 145 Cr. P.C. on 22.06.1999 declaring the first party to be in - 5 - possession and in fact decided the 145 Cr.P.C. proceeding ex parte in absence of the petitioners by recording a finding of the opposite parties, second party as with regard to their having bona fide and possession in the disputed land. It is this order dated 22.06.1999 which has been made subject matter of the second quashing application, bearing Cr. Misc. No. 22847 of 1999, which also had been stayed by this Court by its order dated 06.10.1999 while issuing notice to the opposite parties-first party and subsequently was also admitted by this Court by an order dated 18.02.2000. 7. From the afore mentioned facts it would be thus clear that the petitioners, the members of the first party, have been subjected to crudest form of denial of justice to them inasmuch as in presence of the stay order passed by this Court and information also was given to the court concerned, the Subdivisional Executive Magistrate had proceeded to continue with the proceeding ex parte by examining the witnesses of the opposite parties- second party even when the proceeding under Section 145 Cr. P.C. had to remain stayed. The manner in which the records of the 145 Cr. P.C. have been maintained by the court below in fact, would by itself be sufficient to show that even when the application filed by the petitioner stating the fact of a certificate being enclosed as is still available despite the certificate being removed/ lost/ delinked would itself go to show that the concerned Magistrate had failed to comply with the continuing of stay of further proceeding. The manner in which the order of this Court has been flouted by the concerned Magistrate in seisin of 145 Cr. P.C. - 6 - proceeding must be made matter of enquiry as to communications being sent by the office of this Court with regard to the stay order are also not on record of the proceeding which has been received before this Court. 8. Added to this when this Court would also find that the petitioners, the member of the second party, had no effective opportunity to even cross examine the witnesses of the first party (Opposite parties) or to participate in the hearing prior to the passing of the final order in favour of opposite party, first party. Thus the impugned orders in both the cases are bad only on the ground of the violation of the principles of natural justice. 9. In fact this Court would find that the 145 Cr.P.C. proceeding which has been decided in favour of the opposite party, first party, during the continuance and subsistence of the stay order duly communicated by the petitioners, is nullity in the eye of law inasmuch as the same was passed in violation of the order passed by this Court. It is well settled that any order of injunction or stay passed by the court if violated by other courts by itself would be sufficient to render such order to be bad as was held in the case of Delhi Development Authority Vrs. Skipper Construction Co. (P) Ltd. and Another report in (1996) 4 SCC 622 where the Apex Court held as follows:- “ Where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his - 7 - contempt is well settled. Undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The inherent power of the court is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. This salutary rule has to be applied and given effect to by the Supreme Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The Court must ensure full justice between the parties before it.” 10. Thus, on this ground alone the impugned final order under Section 145 Cr.P.C. dated 22.06.1999, passed in violation of the orders of this Court in the second case is fit to be abide. 11. Coming to the first order impugned in Cr. Misc. No.2604 of 1997 this Court would find that the proceeding under section 144 to 145 Cr. P.C. was converted on 14.08.1996 and that order was stayed by this Court way back in the year 1997 by an order dated 22.07.1997. Thus such order dated 14.08.1996 converting the proceeding under sections 144 to 145 Cr. P.C. being stale is hereby set aside. It is, however, made clear that it would be open to the competent authority to invoke the powers under Section 144 and/or 145 Cr. P.C. by initiating a fresh proceeding in the event of fresh episode between the parties subject to - 8 - fulfillment of statutory requirement and ingredients for drawing such proceedings. 12. With the aforesaid observations, both these applications are allowed. Patna High Court Dated 07th Sept. 2009/ BTiwary/ ( Mihir Kumar Jha, J )