ORDER
Amareshwar Sahay, J.
1. Heard Mr. Rajiv Anand, learned counsel appearing for the petitioner and Mr. S.N. Rajgrahia, learned counsel appearing for the opposite parties.
2. The petitioner is the first party in a proceeding under Section 145, Cr PC is aggrieved by that part of the impugned order dated 20.8.2002, passed by the Sub-Divisional Magistrate, Lohardaga wherein while declaring the possession of the lands under proceeding in favour of Madarsa Quasmia, he has declared that Idrish Ansari O.P. No. 2 was the Secretary and Mustakim Ansari O.P. No. 1 was Sadar of the said Madarsa Quasmia.
3. The petitioner has challenged the impugned order mainly on two grounds;
Firstly, that in a proceeding under Section 145, Cr PC the scope of which is only to declare physical possession of either of the parties with respect to the lands under proceeding. In the said proceeding the Magistrate cannot decide the question of right and title or any of the party to the proceeding over the lands under proceeding.
It is submitted that in the present case the learned Sub-Divisional Magistrate has declared O.P. Nos. 1 and 2 as sadar and secretary of Madarsa Quasmia, which was beyond his jurisdiction.
Secondly, on the ground that since the petitioner has fallen ill, and, as such, he could not attend the case before the Magistrate and, as such, the proceeding was fixed for ex parte hearing and at that stage the second party/opposite parties examined five witnesses. Subsequently, on an application, filed by the fist party/ petitioner the order for ex parte hearing was recalled by the learned Magistrate and the proceeding was again fixed for hearing.
It is submitted that after the ex parte hearing order was recalled, it was incumbent upon the learned Magistrate to recall those five witnesses, who were examined by the second party and to give opportunity to the first party to cross-examine those five witnesses and unless that was done, the Magistrate could not have considered the statement of those five witnesses, who were examined at the stage of ex parte hearing because the petitioner/first party was not afforded any opportunity to cross-examine five witnesses on behalf of the second party/opposite parties.
4. The learned counsel appearing for the opposite parties, while supporting impugned order, has submitted that it is wrong to say that the learned Sub-Divisional Magistrate has gone into the question of title over the lands under proceeding. As a matter of a fact while deciding the question of possession of Madarsa Quasmia he has incidentally gone into the question as to the fact that O.P. No. 1 Mustakim Ansari and O.P. No. 2 Idrish Ansari were Sadar and Secretary respectively of the said Madarsa Quasmia and, as such, there is no illegality in it.
5. It is further submitted on behalf of the opposite parties that the petitioner never prayed before the Sub-Divisional Magistrate, for recalling of the five witnesses, examined on behalf of the second party, for cross-examination and, therefore, if the Magistrate has not recalled those five witnesses no illegality has been committed by him.
6. On the rival submissions of the parties, it appears that at one stage, the proceeding under Section 145, Cr PC was fixed for ex parte hearing, because the first party/petitioner was not appearing before the Magistrate and at that stage, on behalf of the opposite parties five witnesses had been examined. But as it appears that subsequently, on a petition filed by the first party/petitioner the Sub-Divisional Magistrate recalled the order of ex parte hearing and, thereafter, fixed the case for fresh hearing. Thereafter, one witness was examined on behalf of the first party.
7. In my view, the learned Sub-Divisional Magistrate could not have considered the evidence of those five witnesses who were examined on behalf of the second party/opposite parties at the stage of ex parte hearing because subsequently, the order of ex parte hearing was recalled. It was incumbent upon the learned Sub-Divisional Magistrate to give an opportunity to the first party/petitioner to cross-examine those five witnesses who were examined on behalf of the second party/opposites parties at the stage of ex parte hearing. The learned Magistrate could have considered the evidence of those five witnesses of the second party only after the first party would have cross-examined or refused to cross-examine them. Since, the learned Magistrate did not afford reasonable opportunity to the first party to cross-examine those five witnesses and hence on this ground alone the impugned order is held to be not sustainable.
8. Therefore, without going into the merit of the case of either of the parties, this application is hereby allowed, the impugned order is hereby set aside and the matter is remitted back to the learned Sub-Divisional Magistrate to decide the proceeding under Section 145, Cr PC afresh, in accordance with law after giving an opportunity to the first party/petitioner to cross-examine the witnesses of the second party/ opposite parties and if the second party fails to produce those witnesses for cross-examination then their evidence should be ignored.
9. The Sub-Divisional Magistrate shall not allow either of the parties to adduce any further evidence either oral or documentary and the proceeding should be decided within a period of three months from the date of receipt/production of a copy of this order.
10. However, it is observed that while deciding the proceeding under Section, 145, Cr PC the learned Sub-Divisional Magistrate shall go only on the question of actual physical possession of either of the parties and shall refrain himself from going into the question of right and title of either of the parties.