CRIMINAL MISCELLANIOUS NO. 43091 OF 2006 ********* (In the matter of an application under Section 482 of the Code of Criminal Procedure ) ******* 1. SHIVJEE SINGH, SON OF LATE RAMDEO SINGH 2. SHAIL KUMARI DEVI, WIFE OF SHEOJEE SINGH BOTH RESIDENT OF VILLAGE PAHARPUR AHLAD, POLICE STATION SAHEBGANJ, DISTRICT MUZAFFARPUR …………………………………………………………….……….… ….PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. RAM BABU SINGH, SON OF HARKHIT SINGH 3. SITA DEVI, WIFE OF RAM BABU SINGH 4. ANIL KUMAR SINHA, SON OF LATE BABU RAM SINGH 2 TO 4 ARE RESIDENT OF VILLAGE PAHARPUR AHLAD, POLICE STATION SAHEBGANJ, DISTRICT MUZAFFARPUR ……………………………….………… ……………………….……..OPPOSITE PARTIES ********** FOR THE PETITIONERS :- MR. DURGA NAND JHA, ADVOCATE UPENDRA KUMAR CHOUBEY, ADVOCATE FOR O.P. NO. 2 :- MR. SUNIL KUMAR PANDEY, ADVOCATE FOR THE STATE :- MRS. INDU BALA PANDEY, A.P.P. ******* P R E S E N T HON’BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. Heard Counsel for the parties. 2. The petitioner has challenged the order dated 23.03.2003 passed in Criminal Revision No. 114 of 2002 and the order dated 23.05.2002 passed in Case no. 1231 of 1999/124 of 2002 by the Executive Magistrate, Muzaffarpur in a proceeding under Section 145 of the Code of Criminal Procedure. 2 3. This Court is not referring to the facts and merits of the case of both the parties as this Court is not going to adjudicate on that issue. 4. The only question that I propose to examine is with respect to the manner in which the proceedings were conducted by the Executive Magistrate. This Court had called for the records of the case to examine this aspect of the matter. The records are before this Court. The petitioner was second party in the Court below, whereas Opposite Party Nos. 2 to 4 were the first party. After the proceeding was initiated in the year 1999, the first witness on behalf of the first party was examined on 12.01.2002. The next date was 04.02.2002 when PW 2 was produced. PW 2 was partly examined. The next date fixed was 08.04.2002 for cross-examination of PW2. PW 2 was cross-examined and the next date fixed was 07.05.2002. The petitioner-second party was not present on that date. Thus, PW 2 was discharged from further cross-examination. 5. The problem occurred after that, as the Executive Magistrate started fixing the case almost on a day-to-day basis, the next date fixed was 10.05.2002. Again, the petitioner was not present on that date. PW 3 was examined and further examined on 10.05.2002 and the next date was fixed on 14.05.2002. The first party 3 appeared and PW 4 was examined. The Executive Magistrate fixed 15.05.2002 to enable the second party to bring his witnesses. Obviously, on 15.05.2002, the second party did not appear and the matter was fixed for 16.05.2002. On 16.05.2002, the first party produced another witness, who was examined as PW 5. On the next date i.e. 17.05.2002, PW 5 was discharged and the matter was fixed for 20.05.2002 to produce the list of documents, the list of documents was supplied by the first party on 21.05.2002. The first party produced a duplicate sale deed. The date for argument was fixed on 23.05.2002. Apparently, on 23.05.2002, arguments were concluded on behalf of the first party (Opposite Party). 6. From the perusal of the records, it appears that the petitioner was absent from 07.05.2002 and thereafter did not attend the proceedings from 07.05.2002 to 23.05.2002. It is also obvious that no application was filed for time on behalf of the petitioner during the interim period. On 31st May, 2002, the petitioner filed an application stating that he could not attend the Court, as his brother was getting married and since the judgment has not been delivered, the petitioner should be given an opportunity to produce his witnesses. This application was served to the Counsel appearing for the other side. On the said application, it has been written that ‘this 4 matter should be put up along with records on 04.06.2002’. On 04.06.2002, when the petitioner appeared before the Executive Magistrate, he came to know that the order had been passed on 23.05.2002. 7. In the circumstances aforesaid, I find it very odd that the Executive Magistrate had been fixing the date for appearance of the witnesses giving a date of at least one month’s time, suddenly did a turn around on 0705.2002, when the petitioner did not appear, dates were fixed on a day-to-day basis to conduct the hearing of the case, which is almost unheard of in a proceeding of this nature. 8. It has been argued on behalf of the petitioners that the first party-Opposite Party had knowledge of the fact that the petitioners were busy, because of a wedding in house, and had thus deliberately managed to get a day- to-day hearing. It raises doubts in the mind of this Court, which further gets support by the fact that if the Officer concerned had in fact passed the order on 23.05.2002, he would not have asked the application of the petitioner to be put up with the records, rather he would have rejected it on that very date, by making his noting on the time application. Another factor which is odd is that if the order was reserved on 23.05.2002, it is hardly possible that on the same day, the Executive 5 Magistrate could have pronounced the order. 9. In the circumstances aforesaid, this Court finds that the procedure and the manner in which the proceedings have been conducted by the Executive Magistrate, Muzaffarpur cannot be relied upon and as such, I quash the orders dated 23.05.2002 and the order passed in Criminal Revision No. 114 of 2002 dated 23.03.2003. 10. I further direct that both the petitioner and the Opposite Parties 2 to 4 should appear before the Executive Magistrate, Muzaffarpur with a copy of this order within a period of six weeks from the date of receipt of a copy of this order. The Executive magistrate will fix a tentative date for taking up the matter. Since the parties have filed their applications and written arguments in this matter, the Executive Magistrate is directed to call upon the witnesses of the first party/Opposite Parties 2 to 4 and the proceeding should start denovo from the stage of examination of the witness of the first party. 11. In the result, this application is allowed. 12. The Office is directed to return the Lower Court’s Record expeditiously through a Special Messenger at the cost of the Opposite Party Nos. 2 to 4, which should be deposited within a period of two weeks from today to the Court of the Executive Magistrate, Muzaffarpur in Case 6 No. 1231 of 1999/124 of 2002. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 19th APRIL, 2011 N.A.F.R./ANAND