GIRISH SINGH CHAUDHARY Vs. CHANDRIKA SHARMA

JUDGEMENT

(1.) This application under Sections 397 and 401 of the Code of Criminal Procedure, 1973, by Girish Singh Chaudhary and three others is directed against the final order dated 12th December, 1974, passed by a Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure, 1898. The disputed lands measure 23 acres and odd in various plots of Khata Nos. 67, 70 and 101 situated in village Kanpur, Police Station Amarpur, district Bhagalpur. The petitioners were the second party to the said proceeding, whereas the opposite party were some of the members of the first party.

(2.) In paragraph 7 of the application, the petitioners have stated that they could not contest the case before the Magistrate as they were thrown into prison and had to be in jail from 8-10-1974 for a period of three months and the court had refused to accede to the prayer put up on behalf of the petitioners for time, on that ground, and hurried through the proceeding without enabling the petitioners to put in their documents and affidavits for a proper consideration of the subject-matter of dispute before him. A counter-affidavit has been filed on behalf of opposite party Nos. 1 to 11, who are some of the members of the first party to the proceeding, and in paragraph 8 thereof it has been stated that only petitioners Nos. 1 and 3 were in jail in pursuance of an order of conviction in a case under Section 379 of the Indian Penal Code brought by another person and petitioners Nos. 2 and 4 are majors and sons of Girish Singh Choudhary (Petitioner No. 1) and they were conducting the case for all the petitioners before the Magistrate. In that view of the matter, by order dated 10th December, 1976, I directed Shri J.K. Lal, Magistrate, Banka, district Bhagalpur, or his successor-in-office to make enquiry, after hearing counsel for the parties and examining evidence and to submit report in this regard within two months.

(3.) There was another lacuna in the application which the petitioners had filed in this court. The petitioners have impleaded only opposite party Nos. I to 11 as members of the first party in the proceeding, although there was another member Basdeo Sah of the first party in the said proceeding. In this court Basdeo Sah has not been impleaded at all. That apart, there were several members of the third party to the said proceeding in whose favour also possession was declared by the Magistrate and the members of the third party have not been impleaded by the petitioners in their application in this court. Therefore, by order dated 10th December, 1976, I directed the petitioners to take necessary steps in the matter subject to the provision of limitation.