JHARKHAND HIGH COURT ISSUES ORDER FOR SANJAY TIWARY V/S THE STATE OF JHARKHAND AND ORS.

RANCHI, India, Oct. 7 -- Jharkhand High Court issued the following order on Sept. 8:

1. Heard Ms. Ashwini Priya, learned counsel for the petitioner, Mr. Santosh Kumar Shukla, learned counsel for the State and Md. Faruque Ansari, learned counsel for opposite party no.2.

2. This criminal revision petition is directed against the order dated 01.04.2017 passed by the learned Additional Sessions Judge-VIII, Palamau, Daltonganj in Criminal Revision No.57 of 2013 (arising out of Misc. Case No.44 of 2007) initiated under Section 145 of the Code of Criminal Procedure (Cr.P.C.) by the petitioner, whereby, the learned Court has been pleased to set-aside the order dated 05.07.2013 passed by the Sub-Divisional Magistrate, Sadar, Medini Nagar, Palamau, Daltonganj in Misc. Case No.44 of 2007.

3. Learned counsel appearing for the petitioner submits that the proceeding under Section 144 Cr.P.C. was initiated by the petitioner, which was converted into proceeding under Section 145 Cr.P.C., in which, the learned Sub-Divisional Magistrate, Sadar, Medininagar vide order dated 05.07.2013 restrained opposite party nos. 2 and 3 and their men from entering on the land in question till such time that the said order was setaside by the competent Court and attachment order passed under Section 146(1) Cr.P.C. dated 06.11.2012 was vacated. She submits that the said order dated 05.07.2013 passed in Miscellaneous Case No.44 of 2007 was challenged before the learned Additional Sessions Judge-VIII, Palamau at Daltonganj in Criminal Revision No.57 of 2013 and the learned Additional Sessions Judge has been pleased to set-aside the order of the Sub-Divisional Magistrate vide order dated 01.04.2017 and allowed that criminal revision. She further submits that the learned Court has wrongly passed the order when the possession is still in favour of the petitioner and in view of that, the finding of the learned Additional Sessions Judge is not correct and, as such, the impugned order may kindly be set-aside.

4. Learned counsel appearing for the State and opposite party no.2 jointly opposed the prayer and submit that the learned Court has rightly passed the order. They submit that the learned Court has considered factual aspect of the matter and also found that the order challenged was temporary in nature and come to the conclusion that the actual right of the parties is required to be determined by the Court of competent jurisdiction i.e. the Civil Court. They further submit that there is no illegality in the impugned order.

5. It appears that the learned Additional Sessions Judge has discussed the arguments of both the sides as well as the order impugned therein and thereafter come to the finding that the dispute is with regard to the boundaries of the disputed land pondering into possession of the parties and the learned first court has travelled to find out the possession and also enquire about the title over the parties and has come to the finding that the petitioner was having possession from 2 months before the commencement of proceeding.

6. The learned Court has also observed that Sub-section (4) of Section 145 Cr.P.C. provides that the Magistrate shall without reference to the merits or claims of any of the parties to a right to possess the subject of dispute, after perusing written-statements, evidences produced, decide possession of the subject of dispute as on the date of the order made by him under Subsection (1) and in view of that, the learned Court has come to the conclusion that the learned first court while examining the question of possession has exceeded its jurisdiction and right, title and interest of the property is required to be decided in competent court of civil jurisdiction.

7. In view of the above facts, the Court finds that there is no illegality in the impugned order and, as such, this criminal revision petition is dismissed.

8. Pending I.A., if any, is disposed of.

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