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Sribatsa Pradhan Vs. Narasu Naika and Two ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 62 of 1959
Judge
Reported inAIR1960Ori61; 1960CriLJ384
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 344, 530 and 537
AppellantSribatsa Pradhan
RespondentNarasu Naika and Two ors.
Appellant AdvocateH.C. Panda and ;S.K. Panda, Advs.
Respondent AdvocateR.C. Misra, Adv.
DispositionRevision dismissed
Cases ReferredBalkishore v. Phulena
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........did not object to the mode of enquiry at any stage but, on the contrary, he only wanted time to file affidavits of his witnesses and also to file documents. mr. misra for the opposite party drew my attention to a decision reported in balkishore v. phulena, air 1959 pat 284, where a magistrate, in a proceeding under section 145, cr. p. c. first examined some of the parties under the old procedure and then allowed the parties to file their affidavits under the new procedure. the learned judge held that in the absence of any prejudice the order of the magistrate could not be impugned. doubtless, this instant case is slightly distinguishable on facts, from the patna case, inasmuch as, here no witness was examined by either party and the petitioner also did not file affidavits in support.....
Judgment:
ORDER

R.L. Narasimham, C.J.

1. This is a petition to revise a final order under Section 145, Cr. P. Code, passed by a SpecialFirst Class Magistrate of Aska, in the district of Ganjam, declaring the apposite party (1st party before him) to be entitled to possession of the disputed property until eviction in due course of law.

2. A proceeding under Section 145, Cr. P. Code wasinitiated on 6-9-1942 on account of a dispute between the parties regarding certain plots of land invillage Lekhamari, P.S. Bodogada. As there was acriminal case between the parties in respect of thesame property, that proceeding was kept pending.The Criminal case was fought up to the High Courtand the judgment of the High Court was given onlyon 7-8-1958 (Criminal Revision No. 331/1957). Inthat judgment, the trial Court's finding regardingpossession of the disputed property by the complainant was upheld as it was based partly on thepresumption of correctness attaching to the recentsettlement entry and partly on the oral evidence ofwitnesses.

After the delivery of judgment by the High Court, the proceeding under Section 145, Cr. P. Code, was resumed, and on 22-9-1958 the learned Magistrate gave both parties an opportunity to file documents and affidavits in support of their respective claims and further observed 'that the trial will be according to the amended procedure'. Strictly speaking this view of the Magistrate is wrong because the amendment made to Section 145, Cr. P. C. (by Act XXVI) of 1956 was not given retrospective effect so as to affect pending proceedings (see Section 160) and the case should have been disposed of in accordance with the law as it stood prior to the amendment.

But neither party took any objection to this view of the Magistrate. If the petitioner felt aggrieved he should have immediately come to this Court in revision, or at any rate, on the next day of hearing, he could have filed an objection requesting the Magistrate to re-consider his view. The case was adjourned to 13-10-1958, 17-11-1958. 15-12-1958 and 19-12-1958. The opposite party filed documents and affidavits in support of their claims including the judgment of this Court in Criminal Revision 331 of 1957.

The petitioner asked for time for filing his documents and affidavits. He did not volunteer to lead evidence on his behalf. After giving several adjournments the Magistrate ordered on 19-12-1958 that he could not grant any more adjournments as the case was pending for more than six years and then he disposed of it on the materials available before him and held the first party (opposite party) to be entitled to possession of the disputed property.

3. Mr. H.G. Panda on behalf of the petitioner fairly conceded that, on the materials available before the Magistrate on 19-12-1958 the finding in favour of the opposite party was justified but he raised two important contentions in support of this revision petition.

(i) The Magistrate should have exercised his discretion in favour of the petitioner and granted him a further adjournment on 10-12-1958 so as to enable him to file a copy of the order of the Board of Revenue by which the entry in the record of rights in favour of the opposite party was corrected by the Board, in a revision petition; and

(ii) The enquiry in this case should have been held in accordance with old Section 145, Cr. P. C. and! not in accordance with the new procedure laid down in that Section as amended and that consequently the final order based on the new procedure is invalid being without Jurisdiction.

4. The first contention can be disposed of in a few words. The granting of adjournment is a discretionary matter. Mr. Panda produced before us a certified copy of the order of the Board of Revenue dated March, 1958, This could have been obtained prior to 19-12-1958 by the petitioner and no satis-factory explanation was given for its non-production before the lower Court. In view of the innumerable adjournments already granted and the long delay in disposing of the matter, the Court was justified in refusing to grant any further adjournments and as a Court of Revision I am not inclined to interfere with the exercise of discretion by the Magistrate.

5. As regards the second contention the question for consideration is whether the trial of a pending proceeding under Section 145, Cr. P. Code under the new procedure is wholly void as being without jurisdiction notwithstanding the fact that the parties did not object to the same. It does not come within any of the categories of invalid proceedings specified in Section 530, Cr. P. Code. Under the old procedure the parties were entitled to examine witnesses in support of their respective contentions whereas under the new procedure affidavits of parties and their witnesses would suffice--unless the Court desires to examine those persons whose affidavits have been put in as to the facts contained therein.

There has thus been only a change in the mode of conducting the enquiry under Section 145, Cr. P. C. and any irregularity in the conduct of enquiry cannot by itself suffice to render the final order invalid, unless it can be shown that a party has been materially prejudiced thereby. In my opinion, this case will come within the scope of Section 537, Cr. P. C. and as pointed out in the Explanation thereto, the question as to whether the petitioner objected to the mode of enquiry at the earliest possible stage is very material.

The petitioner did not object to the mode of enquiry at any stage but, on the contrary, he only wanted time to file affidavits of his witnesses and also to file documents. Mr. Misra for the opposite party drew my attention to a decision reported in Balkishore v. Phulena, AIR 1959 Pat 284, where a Magistrate, in a proceeding under Section 145, Cr. P. C. first examined some of the parties under the old procedure and then allowed the parties to file their affidavits under the new procedure. The learned Judge held that in the absence of any prejudice the order of the Magistrate could not be impugned. Doubtless, this instant case is slightly distinguishable on facts, from the Patna case, inasmuch as, here no witness was examined by either party and the petitioner also did not file affidavits in support of his claims.

But he did not object when the Magistrate by an express order dated 22-9-1958, informed the parties that the trial would be held according to the amended procedure. On the other hand, in his subsequent petitions for time he made it clear that he was not going to examine any witnesses on his behalf, but only wanted time to file affidavits of his witnesses and documents. He has thus clearly submitted to the new procedure and the principle laid down in the aforesaid Patna decision would apply notwithstanding the distinction on facts.

6. I see therefore no reason to interfere withthe final order of the Magistrate. The Revision Petition is dismissed.


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