IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.35289 of 2008 Md. Samsul Hoda, son of Late Md. Hadish, resident of Village-Mohanpur, P.S. Chatapur, District-Supaul. …………………………………………………………Petitioner. Versus 1. The State Of Bihar through the Principal Secretary, Department of Personnel and Administrative Reforms, Bihar, Patna. 2. The Commissioner, Koshi Division, Saharsa. 3. The District Magistrate, Supaul. 4. The Sub-Divisional Officer, Triveniganj, District-Supaul. 5. The Sub-Divisional Officer, Birpur, District-Supaul. 6. The Executive Magistrate, Birpur, District-Supaul. ……………………………………………Opposite Parties. 7(A).Bibi Sogra, wife of Sekh Manir. 8. Sekh Ahshan, son of Sekha Manir. 9. Sekh Jabbar, son of Sekh Manir. All (O.P. No.7 to 9) are resident of Village-Mohanpur, P.S. Chatapur, District-Supaul. …………………………………..Opposite Parties 2nd Set. ---------------------------------- For the Petitioner : M/s. Amrit Abhijat and Manager Sah, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. Nos.7(A), : Mr. Naresh Kumar Mahto, Advocate. 8 and 9. ------------------------------- O R D E R 12. 19.10.2011. The petitioner has approached this Court, by filing application under Section 482 of the Code of Criminal Procedure, for quashing the order dated 7.8.1992, passed by the Opposite Party No.6, the Executive Magistrate, Birpur, 2 District-Supaul, in Case No.54 of 1987, under Section 145 of the Code of Criminal Procedure and also for quashing the order dated 14.9.2005 passed by the Additional Sessions Judge, Supaul, in Criminal Revision No.124 of 1992, preferred by the petitioner, affirming the order dated 7.8.1992 passed by the Opposite Party No.6, the Executive Magistrate, Birpur, District-Supaul in the aforesaid Case No.54 of 1987. 2. In brief, the case is that a proceeding under Section 145 of the Code of Criminal Procedure, numbered as Case No.54 of 1987, was initiated, in which Sekh Manir, the husband of opposite party no.7(A), Bibi Sogra and the father of opposite parties Nos.8 and 9, Sekh Ahshan and Sekh Jabbar respectively, was the first party and Md. Hadish, the father of the petitioner, Md. Samsul Hoda, was the second party, in relation to the land in dispute of Khata No.317, Khesra No.821, measuring an area of 1 acre 79 decimals of village-Kathara. In course of the proceeding, both the parties filed their written statements and also the documentary as well as oral evidence. Taking into consideration of the case of the parties and the evidence as adduced on their behalf, the opposite party no.6, the Executive Magistrate, Birpur, 3 District-Supaul, vide order dated 7.8.1992, declared the possession over the land in dispute in favour of the first party restraining the second party to make wrong attempt to disposses the first party. 3. Being aggrieved and dissatisfied with the aforesaid order, the petitioner, Md. Samsul Hoda, son of Late Md. Hadish, First party, filed the Criminal Revision No.124 of 1992 before the Sessions Judge, Supaul, which was transferred to the court of Additional Sessions Judge, Supaul, who on hearing both the parties dismissed the Criminal Revision vide order dated 14.9.2005, finding no illegality in the order dated 7.8.1992 of the Opposite Party No.6, the Executive Magistrate, Birpur, District-Supaul, in Case No.54 of 1987. 4. Learned counsel appearing on behalf of the petitioner submits that in course of the pendency of the proceeding under Section 145 of the Code of Criminal Procedure in the court of the Opposite Party No.6, the Executive Magistrate, Birpur, District-Supaul, on 13.5.1992, Triveniganj Sub Division was created covering the village of the land in dispute, which would appear from Annexure-‘1’ to this application. Hence, after creation of the Triveniganj 4 Sub Division since the date of publication of notification dated 13.5.1992, as contained in Annexure-‘1’ to this application, the land in dispute was not within the territorial jurisdiction of the Opposite Party No.6, the Executive Magistrate, Birpur, District-Supaul, as such, the order dated 7.8.1992 passed by the Opposite Party No.6, the Executive Magistrate, Birpur, District-Supaul, in Case No.54 of 1987 is without jurisdiction and placed reliance on a decision in the case of Mukhtar Ansari and another Vs. The State of Bihar {2005(1) PLJR 584}. It has also been submitted that the Plot No.825 was not disputed by the petitioner as owned by Ist party/Opposite parties No.7(A) to 9 but the Opposite Party No.6, the Executive Magistrate, Birpur, District- Supaul, illegally passed the order in respect of Plot No.821 regarding which no document was produced by Ist party/Opposite Parties No.7(A) to 9. Learned counsel for the petitioner further submits that the Additional Sessions Judge, Supaul, did not consider the point of jurisdiction and the fact that no document regarding the Plot No.821 was produced by Ist party/Opposite Parties No.7(A) to 9 and illegally dismissed the Criminal Revision No.124 of 1992 vide order dated 14.9.2005 as preferred by the petitioner against the 5 order dated 7.8.1992 in Case No.54 of 1987 of the Opposite Party No.6, the Executive Magistrate, Bipur, District-Supaul. 5. On the other hand, learned counsel appearing on behalf of the Opposite Parties No.7(A), 8 and 9, submits that the Additional Sessions Judge, Supaul, has rightly dismissed the Criminal Revision No.124 of 1992 vide order dated 14.9.2005 as preferred by the petitioner against the order dated 7.8.1992 passed in Case No.54 of 1987 by the Opposite Party No.6, the Executive Magistrate, Birpur, Supaul, taking into consideration the point of jurisdiction as raised by the petitioner. It has also been submitted that the Plot No.821, measuring an area of 1 acre 79 decimals was in dispute and the first party, Sekh Manir, the husband of opposite party no.7(A) had claimed his possession over the Plot No.821 and also adduced the documentary and oral evidence in course of the proceeding under Section 145 of the Code of Criminal Procedure and the Opposite Party No.6, the Executive Magistrate, Birpur, Supaul, after taking into consideration the evidence of the parties has rightly decided the possession over the land in dispute in favour of the first party/Opposite Parties No.7A to 9. 6. Annexure-‘1’ to this application is the 6 Notification dated 13.5.1992 issued by the Department of Personnel and Administrative Reforms, Government of Bihar, Patna, regarding the creation of Triveniganj Sub Division, covering the area of Chhatapur Block the Birpur Sub Division and Triveniganj Block of Supaul Sub Division. The impugned order dated 7.8.1992 passed by the Executive Magistrate, Supaul, goes to show that the proceeding under Section 145 of the Code of Criminal Procedure, numbered as Case No.54 of 1987, was initiated in the year 1987 and has been disposed of on 7.8.1992, just after about three months of the creation of the Triveniganj Sub Division. The aforesaid Notification does not disclose about the posting of the Sub Divisional Magistrate/ Executive Magistrate for Triveniganj Sub Division. The notification regarding transfer of the pending cases for area of new created Sub Division Triveniganj from Sub Division, Birpur to Triveniganj Sub Division for trial, has not been brought in the notice by the petitioner. As such, even after the creation of Triveniganj Sub Division covering the village of the land in dispute, would be within the jurisdiction of the Opposite Party No.6, the Executive Magistrate, Birpur unless the notification is not issued for transfer of pending cases from Birpur Sub 7 Division to Triveniganj Sub Division. In the case of Mukhtar Ansari (Supra), a Bench of this Court has held that under Section 16 of Bihar Tenants Holdings (Maintenance of Record) Act, 1973, the revisional power is vested in Collector. Hence, impugned order passed by the Additional Collector with the consent of parties cannot be held to be valid. As such, the decision in the case of Mukhtar Ansari (Supra) will not be applicable in the facts and circumstances of the present case. The order dated 7.8.1992 passed by the Executive Magistrate, Birppur, Supaul, goes to show that the disputed Plot under proceeding 145 of the Code of Criminal Procedure is 821 measuring an area of 1 acre and 79 decimals of Khata No.317 and both the parties have claimed their possession in their written statements. The Executive Magistrate has discussed in detail the evidence led on behalf of both the parties and relying on the documents, i.e., the order dated 30.9.1983 passed by the Circle Officer in Case No.80 of 1988, in which 29 decimals of lands of Plot No.821 of area 1 acre 79 decimals was shown as part of the road and regarding rest area 1 acre 50 decimals khata is opened in the name of the first party 8 arrived to the conclusion that the land in dispute is in possession of the First Party. The Additional Sessions Judge also in the order dated 14.9.2005 passed in Criminal Revision No.124 of 1992 as preferred by the petitioner has discussed in detail the submissions as advanced on behalf of the parties and has rightly come to the conclusion that there is no illegality in the impugned order and dismissed the revision. 7. Under the aforesaid facts and the circumstances of the case, no illegality appears in the order dated 7.8.1992 passed by the Opposite Party No.6, the Executive Magistrate, Birpur, District-Supaul in Case No.54 of 1987 and also in the order dated 14.9.2005 passed by the Additional Sessions Judge, Supaul, in Criminal Revision No.124 of 1992, amounting to abuse of the process of the court. 8. As a result, this application stands dismissed. P.S./A.F.R. (Rajendra Kumar Mishra, J)