JUDGMENT
R.N. Biswal, J.
1. The order dated 5.12.2006 passed by the learned Sessions Judge, Sambalpur in Criminal Revision No. 58 of 2006 is under challenge in this CRLMC.
2. The facts, sans unnecessary details leading to filing of the present case is that opp. party No. 1 filed I.C.C. No. 18 of 2006 against petitioner and his wife Smt. Rajeswari Mishra, the pro forma opp. party before the S.D.J.M., Sambalpur on the allegation that they committed offence under Sections 341/342/352/448/380/402 of I.P.C. and prayed for taking suitable action against them. As per the complaint petition, opp. party No. 1 was living in the first floor of his ancestral house bearing Municipal holding No. 79 of Ward No. 13, Jharuapara, Sambalpur Town, standing over plot Nos. 1306 and 1307 appertaining to khata No. 1182 of Sambalpur town Unit No. 6, Golebazar, while his brother, the petitioner and his wife (opp. party No. 2) were staying in the ground floor of the said house. The first floor of the house is separated from the ground floor by a wooden door on the end of the stairs leading to the first floor. On 19.3.2006 the petitioner and opp. party No. 2 illegally locked the said door whereby opp. party No. 1 was forced to be confined in the first floor. He telephoned to the police and his relations and was rescued. So, out of fear of life he left the house leaving all his belongings as described in the complaint petition. One day he saw opp. party No. 2 moving on the terrace of the first floor where she could not have gone without breaking the lock of the door fixed on the end of the stairs leading to the first floor; He also apprehended that the petitioner and his wife (opp. party No. 2) committed theft of his belongings. So, opp. party No. 1 filed the aforesaid complaint. He also filed a petition under Section 93 of Cr.P.C. giving rise to Criminal Misc. Case No. 199 of 2006 before the Court of S.D.J.M., Sambalpur with a prayer to issue search warrant to Town Police Station, Sambalpur to search and inspect the first floor of the house in question and to seize the articles as described in Schedule-A of the petition and to make an inventory of the articles for inquiry and trial of the complaint case. The petitioner and opp. party No. 2 resisted the said petition on the ground that it was not maintainable and that opp. party No. 1 had left the house in question with all his belongings since long.
3. After hearing the counsel for the parties, learned S.D.J.M. rejected the petition holding that no specific number of the complaint case was given in the petition and that there was no material to show, as to how seizure of the articles described in the petition would be helpful for just decision of the case.
4. Being aggrieved by that order opp. party No. 1 preferred Criminal Revision No. 58 of 2006 before the learned Sessions Judge, Sambalpur who allowed the Revision vide order dated 5.12.2006 holding that since opp. party No. 1 (petitioner in the Revision) apprehended theft from his house and had already initiated a criminal proceeding, it was within his right to get his own premises searched and the articles found therein listed, so as to ascertain the missing articles, if any. Being dissatisfied with this order, the petitioner has preferred the present CRLMC under Section 482 of Cr.P.C.
5. Learned Counsel appearing for the petitioner submitted that the impugned order should be quashed on the sole ground that it was passed behind the back of the petitioner and opp. party No. 2 without giving notice to them. As found from the impugned order, considering the urgency of the matter, the learned Sessions Judge did not notice the petitioner and opp. party No. 2 in the Criminal Revision, lest some more articles might be stolen. Furthermore, there is nothing under Section 93 of Cr.P.C. to indicate that notice must be served on the adversary before issuing a search warrant. No doubt the petitioner and opp. party No. 2 resisted the petition filed under Section 93 of Cr.P.C. before the S.D.J.M., but when there is no provision for issuance of notice to the opp. party in a proceeding under Section 93 of Cr.P.C, even if they had resisted the petition and were heard in the Court of S.D.J.M., non-issuance of notice to them in the Revision would not entail quashment of the order passed by the Revisionai Cour.
6. As envisaged under Section 93(1)(c) of Cr.P.C, where the Court considers that the purpose of any inquiry, trial or other proceeding would be served by a general search or inspection, it may issue a search warrant. In the present case there is no material to show that cognizance of any offence had been taken by the trial Court. There is also nothing to indicate that opp. party No. 1 has already been examined under Section 200 of Cr.P.C. Merely filing of a complaint case, in my view would not be sufficient to entertain a petition under Section 93 of Cr.P.C. It seems that learned Sessions Judge allowed the Revision because of the fact that opp. party No. 1 had prayed for searching the premises where he was.staying exclusively. As found from the record, petitioner and opp. party No. 1 are brothers. There are several litigations between them including a suit for partition. As per the complaint case the house in question is an ancestral house. Petitioner and opp. party No. 1 being brothers, they are co-parceners. There is community of interest and unity of possession between all the coparceners. In other words the possession and enjoyment of the property is common. No one is entitled to exclusive possession of any part of the property. So, only because opp. party No. 1 was ‘ staying in the first floor of the house, the Revisionai Court ought not have lightly allowed the Revision, even before examination of opp. party No. 1 (complainant) under Section 200 of Cr.P.C. If that order is allowed to be retained, it would lead to miscarriage of justice.
In the result, the CRLMC is allowed and the impugned order passed by the Sessions Judge, Sambalpur in Criminal Revision No. 58 of 2006 is hereby quashed.