Criminal revision petition seeking relief against impugned order dismissed because of no irregularity -Jharkhand high court

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 7699(P) 1. Rameshwar Mahto 2. Bansidhar Mahto 3. Murlidhar Mahto 3(i) Meghnath Mahto 3(ii) Raju Mahto 3(iii) Mukesh Kumar Mahto 4. Karmu Mahto All sons of Late Jhingu Mahto resident of village Mal Dumaria P.S. Godda Muffasil Dist. Godda. 1st party…. Petitioners 1. Ishwar Lal Mahto son of Late Jagarnath Mahto2. Asurudin Son of Late Sahdul Mian IInd parties… Opposite Parties CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Lakhan Chandra Roy Advocate none For the Petitioners For the Opp. Parties Through Video Conferencing Heard Mr. Lakhan Chandra Roy learned counsel appearing on behalf of the petitioners. 2. No body appears on behalf of the opposite parties. It appears from the records that notices were issued to opposite party nos. 1 1(A) 1(B) 2 and 2(A) vide order dated 24.01.2013 and notice upon opposite party nos. 1 1(A) 2 and 2(A) was validly served but notice upon opposite party no. 1(B) was received by his brother and thereafter fresh steps were taken for service of notice upon opposite party no. 1(B) pursuant to the order dated 11.04.2013 read with order dated 04.07.2013. Thereafter the notice was again received by his brother and consequently vide order dated 27.09.2013 a direction was issued to take steps for service of notice upon opposite party no. 1(B) through paper publication having wide publication in the district of Godda and steps for that purpose were taken and thus the service of notice is complete and no one is appearing on behalf of the opposite parties. This criminal revision petition has been filed for the following relief: “That the petitioners figured as Ist party craves to move in Cr. Revision in this Hon’ble Court against the order impugned in a proceeding under Section 145 Cr.P.C. whereby the order being misconceived and illegal as the trial courts order was set aside on total misconceived conception of law that order dated 3.1.1985 in a proceeding under section 144 Cr.P.C. cannot be converted to a proceeding under section 145 on 26.2.1985 and therefore the petitioners declaration of possession was set aside.” The learned counsel for the petitioners has submitted that vide order dated 29.02.1992 passed in Cr. Rev. No. 30 of 1990 by the court of learned Second Additional District and Sessions Judge Godda the order dated 13.11.1985 passed in T.R. Case No. 104 of 1985 passed by the learned Executive Magistrate Godda was set aside on ground of violation of the principles of natural justice and the matter was remanded back to the concerned authority to pass a fresh order regarding the actual possession over the disputed land without entering into the question of right and title thereof as provided under Section 145 of Code of Criminal Procedure. The learned counsel for the petitioners further submits that pursuant to the said order of remand a fresh order dated 07.09.1992 was passed against the petitioners which was challenged in Criminal Revision No. 692 and decided by the court of learned 2nd Additional Sessions Judge Godda on 15.09.1999 and the fresh order passed pursuant to order of remand dated 07.09.1992 has been set aside. He submits that the order passed in Cr. Rev. No. 692 passed by the court of 2nd Additional Sessions Judge Godda on 15.09.1999 has been challenged in the present proceedings. He submits that the impugned order is perverse and cannot be sustained in the eyes of law in as much as there was a direction passed in the order of remand vide Cr. Rev. No. 30 of 1990 that the actual possession over the disputed land was to be gone into and there was no question of entering into right and title of the parties as provided under Section 145 of Code of Criminal Procedure. Brief fact of the case is that on the basis of a petition filed by the Jhangu Mahto a proceeding under Section 145 of Code of Criminal Procedure was started by the S.D.M. Godda which was transferred by him in his own file and decided the matter in violation of principles of natural justice against which a revision was preferred by the original opposite party no. 1 being Cr. Revision No. 30 of 1990. The said revision was allowed by the learned 2nd Additional Sessions Judge Godda on 29.02.1992 with a direction to the learned Executive Magistrate to hear both the parties. The matter was transferred to the file of one Sri. Umesh Prasad Singh and the case was renumbered as 2592. After remand the learned Executive Magistrate Godda heard the parties and vide order dated 07.09.1992 he decided the proceeding under Section 145 of the Code of Criminal Procedure in favour of the first party in the original proceedings. Against the order dated 07.09.1992 passed in Case No. 252 of 1992 Cr. Rev. No. 692 was filed by the opposite party no. 1 in the original proceedings namely Ishwar Lal Mahto before the learned court below. The grounds taken were that learned Executive Magistrate did not consider judgement of Title Suit No. 63 and Title Appeal No. 40 of 1967 wherein the original opposite party no. 1 was found in the possession of the land and the learned Executive Magistrate also failed to consider the document produced by the original opposite party no. 1. The learned revisional court perused the record of lower court and found that the proceeding under Section 145 Cr.P.C. was started between the parties on the land appertaining to J.B. No. 42 Plot Nos. 227 46 and 44 and 3K. and 4K situated under mouza Rampur. The learned revisional court considered the arguments of both the parties and recorded that in Title Suit no. 63 364 the issue with regards to title and possession was already decided wherein inter alia it was held that Jhingu Mahto father of the present petitioners) had no title and possession against which title appeal no. 40 of 1967 12 of 1974 was also dismissed. The learned revisional court while setting aside the order dated 07.09.1992 passed by Sri U.P. Singh Executive Magistrate Godda in Case No. 252 1992 inter alia recorded that the learned magistrate had crossed his jurisdiction and tried to put the respondentin possession in spite of the fact that they never pleaded that they came in possession of the land in question in particular year after the judgement and decree passed against their father in the said title suit. 10. This court is of the considered view that the learned court below has rightly taken the view that once the possession was already decided in civil suit possession cannot be claimed by losing party in a proceeding under section 145 Cr.P.C in absence of any case made out that they came in possession of the property in particular year after the judgement in the title suit. This court does not find any illegality perversity or material irregularity in the aforesaid findings of the learned court below while allowing the revision petition. The impugned order is a well reasoned order based on materials on record and it calls for no interference by this court. 11. Accordingly the present revision petition is dismissed. 12. Pending interlocutory application if any is closed. 13. Office is directed to send back the lower court records. 14. Let this order be immediately communicated to the learned court below through FAX E mail. Anubha Rawat Choudhary J.) 

Summary: Criminal revision petition seeking relief against impugned order dismissed because of no irregularity -Jharkhand high court A criminal revision petition was filed on the ground that the order passed by the lower court was misconceived and illegal and was under the misconception of law and stated that the proceeding cannot be converted from proceedings under section 144 CRPC to under  145 CRPC. the petition was heard and dismissed by a single judge bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of  Rameshwar Mahto and Ors versus  Ishwar Lal Mahto and Ors ( Cr. Rev. No. 763 of 1999(P)) The learned counsel for the petitioners submits that the application challenging  Criminal Revision No. 63 of 1992 ordered by sessions judge and submits that the impugned order is perverse and cannot be sustained in the eyes of law as there was a direction passed in the order vide Cr. Rev. No. 30 of 1990 that the actual possession over the disputed land was not present and there was a question of parties entering into title under section 145 CRPC. The counsel further submitted that the matter was in violation of natural justice and some applications have already been filed and decided by lower courts in this matter but no court has decided the possession of land in the concerning matter and the appeal was dismissed by lower courts. The court hearing the arguments of the counsels and reviewing previous appeals ordered that once the possession was already decided in a civil suit, possession cannot be claimed by the losing party in a proceeding under section 145 Cr. P.C and in the absence of any case made out the parties came in the possession of the property after a year of filing the suit. hence court does not find any illegality, perversity, or material irregularity in the aforesaid findings of the learned court below while allowing the revision petition and the order is well reasoned and no interference is required in the matter accordingly present revision petition is dismissed. Click here to read the Judgment