Satnarain Prasad vs The State of Bihar and Others

Daljit Singh Dhaliwal, J.—Admittedly, proceedings u/s 144 Code of Criminal Procedure were going on between the Petitioner and the Opposite party Nos. 2 to 7 in the Court of Sub-divisional Magistrate, Gopalganj. The learned Sub-divisional Magistrate passed an order restraining both the parties to go over the land. During the pendency of the said proceeding, a proceeding u/s 188 Code of Criminal Procedure was initiated against the opposite party Nos. 2 to 7 alleging violation of the order passed by the Sub-divisional Magistrate.

Both the parties put an appearance in the proceeding u/s 188 Code of Criminal Procedure and 16.8.1988 was the date fixed. From the order-sheet of the trial court it appears that on 18.8.1988 the Petitioner filed an application for exemption of his appearance. The application was heard but interim order of the date indicate that no further date was fixed therein. However, the matter was taken up on 26.8.1988 on which date the application u/s 188 Code of Criminal Procedure filed by the Petitioner was dismissed. On 2.9.1988 the Petitioner filed an application before the Sub-divisional Magistrate praying for revival of the proceedings as his application was dismissed without hearing him. The application was allowed and the proceeding was revived. On the subsequent date the opposite party Nos. 2 to 7 (second party) filed an application praying therein that the proceeding once dropped could not have been revived. After hearing the parties in the said application, the Sub-divisional Magistrate dismissed the application of the opposite party and found that the proceedings were validly restored. The opposite party Nos. 2 to 7 filed revision against that order which was allowed by the District and Sessions Judge, Gopalganj, vide order dated 10.7.1989 which order had been challenged by the Petitioner in this petition filed u/s 482 Code of Criminal Procedure.

I have heard the learned Counsel for the Petitioner and the Additional Public Prosecutor on behalf of the State-opposite party No. 1. The contention of the learned Counsel for the Petitioner is that in the order dated 18.8.1988 there was a mistake on the party of the Court as the order did not indicate future date of hearing and in this situation the subsequent order passed by the learned Sub-divisional Magistrate on 26.8.1988 without hearing the Petitioner was bad and as such the proceeding was rightly revived by the learned Sub-divisional. Magistrate on the application filed by the Petitioner. The learned Counsel maintained that the learned District and Sessions Judge was in error in holding that the learned Sub-divisional Magistrate had no power to recall the order.

In this respect the learned Counsel for the Petitioner has placed reliance on Sankarsan Nath v. Dr. Sachidanand Das reported in 1969 Cr. LJ 575, in which it has been held that even the inferior Court can invoke inherent powers to grant relief in proper cases. In the instant case, I find that the order dated 18.8.1988 of the learned Sub-divisional Magistrate was laconic as it did not indicate the future date and as such the subsequent order passed without hearing the Petitioner was bad.

Since the mistake was on the part of the Court, there was nothing improper or illegal in recalling that order by the learned Sub-divisional Magistrate.

In view of what has been stated above, I allow the petition and set aside the impugned order dated 10.7.1989 passed by the learned District and Sessions Judge, Gopalganj, in Cr. Revision No. 30 of 1989 and direct the Sub-divisional Magistrate, Gopalganj, to dispose of the enquiry pending before him u/s 188 Code of Criminal Procedure in accordance with law, preferably within three months from the date of receipt of a copy of this order.

The Petitioner through his counsel is directed to cause his appearance before the learned Sub-divisional Magistrate, Gopalganj, on 24.01.95