Allahabad High Court
Jiledar @ Suresh Chandra @ Suresh vs State Of U.P. Thru. Secy. Deptt. Of ... on 20 December, 2022
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- APPLICATION U/S 482 No. - 9550 of 2022
Applicant :- Jiledar @ Suresh Chandra @ Suresh
Opposite Party :- State Of U.P. Thru. Secy. Deptt. Of Home And Another
Counsel for Applicant :- Dhananjai Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Dhananjai Kumar Tripathi, learned counsel for applicant as well as learned Additional Government Advocate for the State and perused the record.
The instant application under Section 482 Cr.P.C. has been filed by the applicant namely Jiledar @ Suresh Chandra @ Suresh with the prayer to quash the impugned judgment and order dated 05.12.2022 passed by learned Session Judge, Shravasti in Criminal Revision No. 44 of 2022 (Jiledar @ Suresh Chandra vs. Rajesh Kumar and another) as well as judgment and order dated 28.07.2022 passed by Sub Divisional Magistrate, Ikauna, District Shravasti in Case No. 2074 of 2015, under Section 145 Cr.P.C.
Learned counsel for the applicant while referring to the impugned order dated 28.07.2022 passed by the Sub Divisional Magistrate, Ikauna, District Shravasti as well as the order dated 05.12.2022 passed by the revisional court, submits that earlier the application moved by the instant applicant- Jiledar @ Suresh Chandra @ Suresh (First Party) for proceeding under Section 146 (1) Cr.P.C. was dismissed by the Sub Divisional Magistrate, Ikauna, District Shravasti vide order dated 26.12.2016 and a revision against the same was preferred by the instant applicant, however, the same was also dismissed vide order dated 11.06.2018 passed in Criminal Revision No. 77 of 2017 by Additional District and Session Judge/Fast Track Court, Shravasti at Bhinga and thereafter many years an application was moved by the opposite party no.2- Rajesh Kumar @ Suggu before the Sub Divisional Magistrate concerned with the prayer to do further proceedings in the case as the revision filed by the instant applicant has been dismissed and it was on this application that without affording any opportunity to tender evidence in support of their claim to the instant applicant, the impugned order of date 28.07.2022 was passed whereby the proceedings under Section 145 Cr.P.C. has been terminated on the ground that the second party is in possession of the property and a revision preferred against this order was also dismissed by the revisional court vide order dated 05.12.2022 passed in Criminal Revision No. 44 of 2022 by the Sessions Judge, Shravasti.
It is vehemently submitted that the revisional court had committed patent illegality in assuming that the application before the S.D.M. concerned was moved by the instant applicant, while the same was moved by the opposite party no.2 and it was evident on record that without providing any opportunity to lead evidence in support of their claim, the S.D.M. concerned had dismissed the application/proceedings pertaining to Section 145 Cr.P.C. while the procedure prescribed for determining the possession under Section 145 Cr.P.C. is clear enough that both parties shall be given an opportunity to file written statement as well as evidence in support of their claim of possession. Thus, patent illegality has been committed by the S.D.M. concerned as well as by the revisional court.
Learned A.G.A. on the other hand submits that there is no illegality in the order of the Sub Divisional Magistrate, Ikauna, District Shravasti or in the order passed in Revision by the Sessions Judge, Shravasti, but could not dispute the factual position that without affording the opportunity to tender evidence the proceeding under Section 145 Cr.P.C. has been culminated by the S.D.M. concerned.
Having regard to the facts and circumstances and keeping in view the order intended to be passed, the service of notice on opposite party no.2 is hereby dispensed with.
Perusal of the record would fortify the factual submissions made by learned counsel for the applicant that initially an application under Section 145 Cr.P.C. was moved by him along with an application under Section 146 Cr.P.C., which was dismissed by the S.D.M. concerned vide order dated 26.12.2016 and against that order a Revision was preferred by the instant applicant- Jiledar @ Suresh Chandra @ Suresh, which was also dismissed vide order dated 11.06.2018 and after three years of passing the order by the revisional court dated 11.06.2018 an application appears to have been moved by the opposite party no.2 before the Magistrate requesting him to do further proceedings in the case and it is on the basis of this application the impugned order dated 28.07.2022 was passed whereby the proceedings under Section 145 Cr.P.C. has been culminated and the revision preferred against the same has also been dismissed.
Primafacie it is evident that without providing opportunity to the parties to tender evidence in support of their claim, the application under Section 145 Cr.P.C. has been dismissed by the Sub Divisional Magistrate Ikauna, District Shravasti.
Perusal of the order of the revisional court would reveal that the revisional court has passed the order in an erroneous belief that an application for further proceedings of the case was given by the instant applicant- Jiledar @ Suresh Chandra @ Suresh, before the S.D.M. concerned, while the same was moved by the opposite party no.2- Rajesh Kumar @ Suggu and it is also evident that no opportunity to tender or lead evidence has been provided to the parties.
Thus, having regard to the above factual position the instant application moved on behalf of the applicant is finally disposed of with a direction that within 15 days from today the applicant may file an appropriate application before the Sub Divisional Magistrate, Ikauna, District Shravasti for the purpose of recalling of order dated 28.07.2022 and the Sub Divisional Magistrate, Ikauna, District Shravasti after providing an opportunity of being heard to the parties would dispose of the same by passing a reasoned order strictly in accordance with law keeping in view the fact as to whether any opportunity of tendering evidence was provided to the parties for establishing their claim of possession.
Order Date :- 20.12.2022
Praveen
