Bibi Mashooda Khatoon @ Mashooda Khatoon vs The State of Bihar and Others

Abhijit Sinha, J.—Heard Sri M.Z. Quamar, the learned counsel for the petitioner and Dr. Mayanand Jha, the learned A.P.P. for the State. Although O.P. Nos. 2 to 4 in compliance of the notice served on them put in an appearance by filing a vakalatnama: yet at the time of hearing curiously none was present on their behalf. The sole petitioner herein has filed this application for quashing of the order dated 27.8.2007 passed by Sri J.K. Dwivedi, learned Executive Magistrate, Araria, in a proceeding u/s 145 Cr.P.C. being Misc. Case No. 440M of 1999 whereby the learned Magistrate has attached the lands of the petitioner and others u/s 146(1) Cr.P.C. and has appointed the Officer Incharge of Bairgachhi O.P. as Receiver.

The grievance of the petitioner is founded on the fact that notwithstanding her being in possession of the disputed lands purchased by her from Jaibadut and the reports of the Officer Incharge, Bairgachhi O.P. and the Circle Officer, Araria, showing her to be in possession, the impugned order was passed after reopening the case and without any notice to her and that too when her petition for being impleaded as an intervenor was already on record. The impugned order also does not disclose that she had been heard.

Since O.P. Nos. 2 to 4 have not appeared, the submissions of the petitioner remains unrebutted. In the aforesaid circumstances, where the petitioner has not been given an opportunity of hearing, the impugned order is set aside and the matter is sent back to the court below for fresh hearing after issuing notice to all the parties and passing fresh orders in accordance with law.