Allowed

Gajen Kalita and Anr. v. the State of Assam and 4 Ors.

Gauhati HC8 Apr 2019Crl.Rev.P./59/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed the revision petition challenging an order that set aside a Magistrate's order under CrPC Sec 133 without recording evidence. The court set aside the impugned order and directed the Magistrate to hear parties from the evidence stage, dismissing the prayer for status-quo.

What did the court decide?

Impugned order of Additional Sessions Judge set aside; directed Executive Magistrate to record evidence from the stage thereof; prayer for status-quo dismissed.

Gajen Kalita and Anr. Vs the State of Assam… — Civil Procedure and Limitation | Gauhati HC (2019)

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GAHC010032462019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P. 59/2019

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1:GAJEN KALITA AND ANR.

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S/O- LATE MANIK KALITA, VILL- PANITEMA, P.S- KAMALPUR, DISTKAMRUP, ASSAM, PIN- 781101

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2: KAMESWAR KALITA S/O- LATE MANIK KALITA VILL- PANITEMA P.S- KAMALPUR DIST- KAMRUP ASSAM PIN- 78110

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS REP. BY THE PP, ASSAM

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2:HALIRAM KALITA S/O- LATE THANU RAM KALITA VILL- PANITEMA P.S- KAMALPUR DIST- KAMRUP ASSAM PIN- 781101

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3:BHARAT KALITA S/O- LATE THANU RAM KALITA VILL- PANITEMA P.S- KAMALPUR DIST- KAMRUP ASSAM PIN- 781101

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Page No.# 2/3

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4:DHARMESWAR KALITA S/O- LATE THANU RAM KALITA VILL- PANITEMA P.S- KAMALPUR DIST- KAMRUP ASSAM PIN- 781101

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5:PRAFULLA KALITA S/O- LATE THANU RAM KALITA VILL- PANITEMA P.S- KAMALPUR DIST- KAMRUP ASSAM PIN- 78110

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Advocate for the Petitioner : MR. D P CHALIHA

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

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ORDER

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Date : 08-04-2019

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Heard Mr. DP Chaliha, learned senior counsel assisted by Mr. UP Chaliha, learned counsel for the petitioners as well as Mr. RJ Baruah, learned Additional Public Prosecutor appearing on behalf of the State respondent No. 1. Also heard Mr. N Ahmed, learned counsel for the respondent Nos. 2 to 5.

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Perused the petition as well as the annexures furnished therewith.

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This application has been filed under Sections 397/401 of the Cr.PC challenging the legality, propriety and correctness of the order, dated 18.12.2018 passed by the learned Additional Sessions judge, (FTC), Kamrup, Rangia in Criminal Revision Case No. 22/2018 in respect of an order passed by the learned Executive Magistrate in a proceeding under Section 133 of the Cr.PC in Case No. 19/2018.

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Page No.# 3/3

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The learned Executive Magistrate passed an order under Section 133 of the Cr.PC in favour of the petitioner therein. However, on revision by the respondents, the learned Additional Sessions Judge, vide the impugned order, set aside the said order inspite of holding in his order about failure on the part of the learned Executive Magistrate to invoke of the provision of Section 138 of the Cr.PC.

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Section 138 of the Cr.PC provides that against whom an order under Section 133 of the Cr.PC is made appears and shows cause, the Magistrate shall take evidence in the manner as in a summon case.

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Both the learned counsel for the parties appearing before this court have admitted that there was no evidence recorded by the learned Executive Magistrate in the aforesaid Case No. 19/2018 although show cause reply was filed.

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Therefore, it appears that the order of the learned Additional Sessions Judge suffers from illegality, inasmuch as, inspite of recording non-invocation of Section 138 of the Cr.PC yet the learned Additional Sessions Judge did not remand the case back for compliance thereof, which would have been the proper course of action.

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That being so, the impugned order is set aside with a direction to the learned Executive Magistrate concerned to hear both the parties from the stage of recording of evidence. However, so far the prayer made by the learned counsel for the respondents for maintaining of status-quo in respect of the disputed path is concerned, this court is of the view that the respondents may approach the learned Executive Magistrate with such a prayer which the learned Magistrate shall consider and dispose off on its own merit.

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With the above observations and directions, this petition stands disposed off at this admission stage itself.

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JUDGE

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Comparing Assistant

Gajen Kalita and Anr. v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

Gajen Kalita and Anr. v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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