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Patna High Court

Mustafa @ Md. MustafaversusThe State Of Bihar and Ors

Decided
Disposal
ALLOWED

Holding

The order rejecting the criminal revision is set aside and quashed, and the revision must be heard on its merits after condoning the delay.

Summary

The petitioner, Mustafa, purchased a disputed plot of land and obtained mutation in his name. The opposite parties claimed ownership and initiated proceedings under Section 144 of the CrPC, which were later converted to a Section 145 proceeding on 5 September 2013. Mustafa filed a criminal revision challenging the conversion, but the Additional District and Sessions Judge rejected it on the ground of limitation, despite Mustafa’s explanation that he only became aware of the order on 6 August 2014. Mustafa sought condonation of delay under Section 5 of the Limitation Act, which the lower court ignored. The Patna High Court held that the delay was condonable, quashed the order of 5 August 2015, and remanded the matter for a fresh hearing on merits.

Issues considered

  • Whether the criminal revision filed by the petitioner was barred by limitation.
  • Whether the delay in filing the revision can be condoned under Section 5 of the Limitation Act, 1963.
  • Whether the conversion of a proceeding under Section 144 CrPC to Section 145 CrPC was lawful.
  • Whether the order rejecting the revision should be set aside.

Legislation cited

Subjects

  • land dispute
  • criminal revision
  • limitation period
  • condonation of delay
  • Section 144 CrPC
  • Section 145 CrPC
  • property mutation

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.58226 of 2015
                                  Arising Out of PS. Case No.- Year-1111 Thana- District-
                 ======================================================
                 Mustafa @ Md. Mustafa Son of Haji Asgar Ali, resident of Village- Durgapur,
                 P.O.- Sukhasan, P.S.- Barari O.P. Semapur, District- Katihar.

                                                                                       ... ... Petitioner/s
                                                         Versus
           1.    The State Of Bihar
           2.    Jalauddin Son of Ayub Ali, resident of Village-Naya Tola Balughat, P.O.-
                 Sukhasan, P.S- Barari, District- Katihar.
           3.    Javed Ali Son of Latifur Rahman, Resident of Village- Balughat, P.O.-
                 Sukhasan, P.S.- Barari, District- Katihar.
           4.    Makbool Son of Saijuddin, resident of Village- Sukhasan, P.O.- Sukhasan,
                 P.S.- Barari, District- Katihar.
           5.    Mistar Son of Makbool, resident of Village- Sukhasan, P.O.- Sukhasan, P.S.-
                 Barari, District- Katihar.

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :         Mr. M.N. Parbat, Sr. Advocate
                                                    Mr. Praveen Prabhakar, Advocate
                 For the Opposite Party/s :         Mr. Jitendra Kr. Roy No.1App
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
                                       ORAL ORDER

5   06-01-2026                      Heard the learned Senior Counsel for the petitioner

                   and the learned APP for the State. None has appeared on behalf

                   of the opposite parties.

                                    2. The present application has been filed for

                   quashing the order dated 5.8.2015, passed by learned Additional

                   District and Session Judge IIIrd, Katihar, in Criminal Revision

                   Case No. 131 of 2014 (Mustafa Versus, Jalauddin and others) by

                   which the learned Additional District and Session Judge III rd

                   rejected the Criminal Revision case confirming the order dated
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          5.9.2013, passed by learned Sub-divisional Magistrate, Katihar,

          in Case No. 144 M of 2013 (Jalauddin Versus, Javed Ali and

          others), by which he converted proceeding under section 144 of

          code of criminal procedure in a proceeding under section 145 of

          code of criminal procedure.

                          3. The brief facts giving rise to the present

          application are that one late Dhandhari Sahani Son of late

          Budhram Sahani was married twice and had three sons from his

          first wife Koily Devi, namely, Charitar Sahani, Firangi Sahani

          and Mangal Sahani. Out of these three sons Mangal Sahani died

          unmarried, and Firangi Sahani died issueless leaving behind his

          wife Sudhiya Devi who also died in the year 2005. Charitar

          Sahani was married to one Jhunni Devi and both died leaving

          behind a son namely, Santlal Sahani from the wedlock.

          Similarly, said late Dhandhari Sahani had a son namely, Hare

          Kishun Sahani from his second wife namely, Fagui Devi, who

          was married to one Deoki Devi and both died leaving behind

          four daughters namely, Akshara Devi, Parbati Devi, Tatasan

          Devi and Surji Devi, who all are married. It is stated that

          disputed land covered under Khata no. 28, plot no. 3560 having

          area 59 decimal 7.1/2 kari (wrongly mentioned as area 60

          decimal) was purchased land of late Sudhiya Devi wife of late
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          Firangi Sahani and after her death, it came in possession of

          Santlal Sahani. The present petitioner purchased the said land

          from said Santlal Sahani vide registered Sale Deed No. 14050

          dated 16.7.2012 for valid consideration of rupees 1,85,000/- and

          came in possession of the same. The name of petitioner has been

          mutated over the land in question in accordance with law in

          government register and having found his possession over the

          same and after payment of rent, he has been issued rent receipt

          also.

                          4. In the year 2012 vide non F.I.R. No. 22 of 2012

          dated 11.11.2012 submitted by the police before learned Sub-

          divisional Magistrate, Katihar based on the application of

          opposite party 2nd set regarding dispute amongst the parties

          over a piece of land, Case No. 229 M of 2012 was started under

          section of 144 of Cr.P.C. In the said case, the opposite party 2 nd

          set claimed that he had purchased land from one Surji Devi vide

          sale deed no. 14729 dated 20.7.2012 for consideration of rupees

          1,83,000/- however, in the said sale deed Khata no. 943 was

          wrongly mentioned which was again corrected as Khata no. 28

          by said Surji Devi vide sale deed no. 24034 dated 29.11.2012.

          As per case of opposite party 2nd set Surji Devi was adopted

          daughter of late Sudhiya Devi. Later on Case No. 229 M of
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          2012 was dropped by the learned Sub-divisional Magistrate,

          Katihar vide his order dated 19.1.2013 on the ground that

          statutory period of 144 proceeding was going to expire. After

          dropping of aforesaid 144 proceeding, the opposite party 2nd set

          on the almost same set of facts had again got submitted non

          F.I.R. No. 16 of 2013 dated 30.6.2013 by the police before

          learned Sub-divisional Magistrate, Katihar regarding alleged

          dispute over land in question and again Case No. 144 M of 2013

          was started under Section of 144 of Cr.P.C., vide order dated

          8.7.2013.

                          5. After service of notices, the petitioner appeared

          and objected to the claim of opposite party 2 nd set as well as the

          maintainability of said proceeding on various grounds of law

          and facts. The opposite party 2nd set also submitted his show

          cause on the almost same set of facts as taken by him in the

          earlier proceeding aforesaid. However, in the month of June

          2014 to the utter surprise of the petitioner, he received copy of

          notice issued under section 145 of Cr.P.C. by the learned Sub-

          divisional Magistrate, Katihar and he approached the concerned

          office to enquire about it but no satisfactory reply was given to

          him regarding passing of order dated 5.9.2013 behind his back.

          Thereafter, he appeared in the case on 11.6.2014, the date fixed,
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          with prayer for adjournment which was granted. In the

          meantime, the petitioner also became aware about pendency of

          Mutation Appeal No. 722 of 2014 filed by opposite party 2 set

          before the learned Deputy Collector Land Reforms against the

          order of rejection of his claim of Mutation over the land in

          question and thus on 6.8.2014, the petitioner filed an application

          in the Case No. 144 M of 2013 challenging its maintainability

          on various grounds of law and facts on the basis of which

          direction was issued to the opposite party 2nd set for filing

          rejoinder. But with an intention to delay the matter, neither any

          rejoinder was filed by the opposite party 2nd set on subsequent

          dates nor any final order was passed by the learned Sub-

          Divisional Magistrate, Katihar on the application of petitioner

          and thus having found no alternative the petitioner applied for

          certified copy of entire order sheet of case no. 144 M of 2013

          which was prepared and handed over to him on 22.10.2014.

                          6. The learned counsel for the petitioner has

          submitted that after receipt of copy of order sheet, the petitioner

          challenged the validity of order dated 5.9.2013 well within

          limitation period from the date of receipt of copy of order by

          filing Criminal Revision no. 131 of 2014 dated 11.11.2014

          before the learned District and Session Judge, Katihar, which
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          came for final hearing before the learned Additional District and

          Session Judge IIIrd, Katihar. During pendency of Criminal

          Revision no. 131 of 2014, as per legal advice, the petitioner also

          filed an application under section 5 of Indian Limitation Act, on

          17.1.2015 for condonation of delay if any, in filing the Criminal

          Revision Application in the circumstances mentioned above. He

          further submitted that in the said Criminal Revision case

          opposite party 2nd set appeared and filed his rejoinder on

          17.3.2015 in which he objected the maintainability of the case

          mainly on the ground that Criminal Revision was barred by

          limitation and the matter was heard by the learned Additional

          District and Session Judge IIIrd, Katihar, who after hearing

          rejected the Criminal Revision case in illegal manner vide his

          impugned order dated 5.8.2015 on the ground of limitation by

          committing error of record and holding that the explanation for

          condoning the delay given by the petitioner was not satisfactory.

                          7. The learned counsel for the petitioner has further

          submitted that the impugned judgment and order dated 5.8.2015

          has been passed by the learned Additional District and Session

          Judge IIIrd, Katihar in wholly illegal manner and is not

          sustainable in the eye of law. He further submits that it would be

          evident from the contents of order sheet of Criminal Revision
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          case 131 of 2014 that the learned Additional District and

          Session Judge IIIrd, Katihar has been himself admitted that the

          petitioner became aware about order dated 5.9.2013 at least on

          6.8.2014, but he refused to condone the delay without

          considering and stating a single word regarding the explanation

          of delay in filing criminal revision application for the period in

          between 6.8.2014 to11.11.2014 given in application for

          condonation of delay, which would be of about two months.

                          8. The learned counsel for the State has vehemently

          opposed the application of the petitioner.

                          9. I have heard and considered the submissions of

          the parties and have gone through the material available on

          record.

                          10. In the opinion of this Court, the revision

          application should have been heard on merits after condoning

          the delay as the petitioner became aware of the order dated

          05.09.2013 at least on 06.08.2014.

                          11. In view of the discussions made above, this

          Court is of the opinion that the impugned order dated

          05.08.2015 passed by the learned Additional District and

          Sessions Judge IIIrd, Katihar, is not sustainable in law and the
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                      same is hereby quashed.

                                      12. Accordingly, the present application stands

                      allowed and the matter is remanded to the learned Additional

                      District and Sessions Judge IIIrd, Katihar/concerned Court

                      below for fresh consideration keeping in view the facts of the

                      case and after considering the explanation for the delay in filing

                      the revision petition. The Court below shall pass a reasoned

                      order on the merits in accordance with law after hearing both

                      parties.



                                                              (Sandeep Kumar, J)
Shishir/-

U


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