1. This application is filed under section 482 of CrPC.

2. The brief facts necessary for disposal of this application are that the applicant Dongar Singh Rathore is a resident of village Panda, Tahsil Badnawar, District Dhar. He had ancestral house located in the village. According to the applicant, the house remained in his possession and he is the owner of the house. The non-applicant No.3 Sabal Singh is the real brother of the applicant. The applicant due to old age, shifted to Indore however, his sons frequently visit the village to look after his agricultural work. When they visit the village, they stay in the house and they also keep their farm equipments and crops in the said house. On 28.5.2003, the present applicant received a message that non-applicant No.3 and his sons broke the lock of the applicant’s house and tried to take forcible possession of the house. The matter was reported to the police and crime under section 448/34 of IPC was registered.

3. During the pendency of the criminal trial, the criminal Court after considering the arguments from both the sides, granted interim custody of the house to the non-applicant No.3 on furnishing of Supurdnama for Rs.1,00,000/-. Under this order, non-applicant No.3 remained in possession of the house custodial “legis” of the house.

4. On 14.6.2005, the prosecution filed an application under section 321 of CrPC, which was accepted by the learned Magistrate and the case was withdrawn.

5. Being aggrieved by the order passed by the learned Magistrate allowing the prosecution to withdraw the case, the revision was filed before the First Additional Sessions Judge, Dhar, which was decided on 31.10.2011 by the learned Additional Sessions Judge in Criminal Revision No.189/2005. The revision was dismissed on the ground that the applicant and the non-applicant No.3 are real brothers and a civil case was pending between them. In that civil case, the present applicant sought relief of the possession by removing the lock putted on the house by the non-applicant No.3. However, this civil suit was dismissed by the civil Court. Under this situation, the revisional Court found that no irregularity was committed by the learned Magistrate in allowing the application under section 321 of CrPC.

6. Subsequent to this, the present applicant filed first appeal before the First Additional District Judge, Dhar, which was registered as Civil Appeal No.20-A/2005. The first appeal was allowed and decree to the following effect was passed by the appellate Court :-

It is and decreed that fopkj.k U;k;ky; }kjk ikfjr fu.kZ; ,oa fMØh fnukafdr 25-3-2005 vikLr dh tkrh gS rFkk ;g vihy Lohdkj dh tkrh gS ,oa vihykFkhZ@oknh dk okn fuEukuqlkj fMØh fd;k tkrk gS %&

¼v½ ;g ?kksf”kr fd;k tkrk gS fd xzke ikUnk] rglhy cnukoj] ftyk /kkj esa fLFkr oknxzLr edku] oknh ds LokfeRo dk gSA

¼c½ izfroknh Øekad 2 dks ;g vkns’k fn;k tkrk gS fd ;fn mlds }kjk mDr oknxzLr edku ds rkys ij yxk;h x;h lhy dks ;fn vHkh rd ugha gVk;k x;k gS] rks lhy dks gVk;k tkosaA

¼l½ izfroknh Øekad 1 dks vkns’k fn;k tkrk gS fd og oknxzLr edku esa yxk;s x;s vius rkys dks gVkdj oknxzLr edku dk vkf/kiR; oknh dks lkSaisA

¼n½ bl vihy dk O;; izR;FkhZ Øekad 1 ogu djsxkA vfHkHkk”kd ‘kqYd fu;ekuqlkj ;k izekf.kr gksus ij nksuksa esa ls tks Hkh de gks vkadh tk;sA

¼,-ds-xks;uj½

izFke vij ftyk U;k;k/kh’k

/kkj ¼e-iz-½

7. The non-applicant No.3 filed a second appeal before the High Court which is pending.

8. In the background of the aforesaid facts, the applicant filed an application challenging the order of the Magistrate under section 482 of CrPC. He placed reliance on the judgment of Hon’ble the Supreme Court in the matter of Sheonandan Paswan v. State of Bihar and others reported in 1987 (1) SCC 288. In para 79 of the judgment, Hon’ble the Supreme Court observed that :-

The Court’s function is to give consent. This section does not obligate the Court to record reasons before consent is given. However, I should not be taken to hold that consent of the Court i