BADDAR DIN Vs. NARSINGH DAYAL

JUDGEMENT

(1.) ORDER :- This petition under Section 561-A Cr. P.C. seeks recall of order passed by this Court in Criminal Reference No. 7/93 dated 27-7-1993. The question that arises in the process is : whether the order passed by this Court, in exercise of ifs criminal revisional jurisdiction, can be recalled in the face of the provisions of Sections 369 and 440 of the Code of Criminal Procedure ?

(2.) The controversy can be traced to proceedings initiated by the petitioner by moving the Executive Magistrate under Section 145, Cr. P.C. His case was that he had taken on lease land measuring 5 kanals 1 marla from the respondents for a consideration of Rs. 5,000 vide lease deed dated 13-3-1988 but later on respondent No. 1 managed to get revenue entries made in his favour resulting in his forcible dispossession on 2-6-1988. He moved the application before the Sub Divisional Magistrate, Basohli, initially which was later transferred to the Tehsildar Executive Magistrate, Bani. It appears that Sub Divisional Magistrate, Basohli, passed the preliminary order on 14-6-1988 and after the proceedings were transferred, the Tehsildar Executive Magistrate, Basholi, passed an order of attachment of land on 25-10-1991 and thereafter paved order dated 30-11-1992 whereby he declared petitioner to be in possession until ousted in due course of law. This order was challenged in a criminal revision before the learned Sessions Judge, Kathua, who found the preliminary order defective for not conforming to the requirements of the provisions of Section 145, Cr. P.C. and recommended the setting aside of the same to this Court. He accordingly made a reference to this Court (Crl. Ref. No. 7/93) which was accepted vide order dated 27-7-1993 directing the restoration of land to the respondents. This order was passed in absence of the petitioner and taking cue from this he has filed this petition invoking the inherent powers of this Court to canvass that the order should be recalled as it has been passed at his back and in violation of the principles of natural justice, same being nullity in the eye of law.

(3.) The petitioner's case is that the criminal reference was posted before the Deputy Registrar who was told that it would be listed in the Court on 9-8-1993. But it was listed on 27-7-1993 before the Court in the orders column and was finally disposed of in his absence. It is submitted that no opportunity of being heard was afforded to him in the circumstances and in any case the matter was listed in the orders column and as the counsel for the petitioner was busy in a murder case on 27-7-1993, he could not reach the Court on that date. It is moreover urged that the controversial order passed by this Court did not conform the provisions of Section 439(2), Cr. P.C. inasmuch as no adequate opportunity was afforded to the petitioner to project his case. Learned counsel for the petitioner, Mr. Goni, has placed whole hog reliance on 1982 KLJ 55, a full bench judgement of this Court, to canvass that the order passed by this Court was a nullity for having been passed in the circumstances detailed hereinabove and in the absence of the petitioner and could be corrected by ordering re-hearing of the matter irrespective of the bar created by the provisions of Section 369, Cr. P.C. He also derived support from another Full Bench Judgement of this Court titled Manga v. Dhanna, 1971 JKLR 414, on the point that if the omission in the preliminary order did not cause prejudice to the other side or did not result in miscarriage of justice and where the parties knowing the nature and subject matter of the dispute had faced the trial, the defect in the preliminary order would not vitiate the entire proceedings and the Executive Magistrate could be directed to pass appropriate preliminary order in accordance with the provisions of Section 145 and then to start proceedings afresh. Learned counsel in short, urged that if it was not found possible to touch the order passed by this Court dated 27-7-1993, yet, it could be given its real effect by directing the executive magistrate to pass a fresh preliminary order and to re-start the proceedings.