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Ratnakar Naik and ors. (Second Party Nos. 1 to 3) Vs. Golakh Chandra Samal (First Party) and ors. (Second Party Nos. 4 and 5) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 283 of 1964
Judge
Reported inAIR1966Ori56; 1966CriLJ279
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 147, 366 and 367
AppellantRatnakar Naik and ors. (Second Party Nos. 1 to 3)
RespondentGolakh Chandra Samal (First Party) and ors. (Second Party Nos. 4 and 5)
Appellant AdvocateS. Mohanty and ;S.C. Mohapatra, Advs.
Respondent AdvocateB.K. Ray and ;P.N. Patnaik, Advs. for Opposite Party No. 1
DispositionRevision allowed
Cases Referred and Krushna Mohan v. Sudhakar Das
Excerpt:
.....doubt about the proposition that the order would be a perfectly valid order, and if no appeal is filed in a civil court within the requisite statutory period of limitation, it would be a final order affecting the rights of the party against whom it has been passed......revised, it is final and conclusive as between the parties.5. if the order dated 17-6-64 is one passed within the jurisdiction, it is unsupportable being contrary to law inasmuch as it was not a speaking and reasoned order. but being a fully valid order within jurisdiction, there is no further jurisdiction in the magistrate to deal with the matter. the order dated 30-6-64, though a speaking order, is without jurisdiction and must he quashed.6. in view of my observation that the order dated 17-5-1964 is liable to be set aside and the order dated 30-6-1964 is to fee ignored as being without jurisdiction, the only appropriate order that can be passed in the circumstances of the case is to remand it. it is agreed amongst the parties that they would not be allowed to lead any further.....
Judgment:
ORDER

G.K. Misra, J.

1. Second party Nos. 1 to 3 arc the petitioners. The proceeding is one under Section 147, Cr. P.C. It is unnecessary to refer to the facts in detail as the case is being remanded.

2. Mr. Mohanty raised two contentions:

(i) That the final order passed on 17-5-1964 is not a speaking order, and, as such, is liable to be quashed; and

(ii) After the final order had been passed on 17-5-1964, the Magistrate had no further jurisdiction to pass a reasoned order on 30-6-1964 which must accordingly he ignored.

Both the contentions require careful consideration.

3. In order to appreciate the contentions, the order dated 17-5-1964 may be extracted.

'I hold that the second party did not exercise right of user within three months prior to the date of institution of the proceeding and is accordingly prohibited to exercise such right on the land under proceeding.'

Mr. Ray, however, contended that an order under Section 147, Cr. P.C. is not a judgment within the meaning of Sections 366 and 367, Cr. P. Code. Reliance was placed on Surya Rao v. Sathiraju, AIR 1948 Mad. 510 and Krushna Mohan v. Sudhakar Das, AIR 1953 Orissa 281. Mr. Mohanty does not dispute this proposition. He, however, contended that even though the order dated 17-5-64 might not be a judgment within the meaning of Sections 366 and 367, it must he a speaking order as under the statute parties arc called upon to file written statements and give evidence. The order being a judicial order, the Magistrate must apply his judicial mind, make proper assessment of the evidence and record his reasons fully so that in revision the High Court would be in a position to know the proper approach was made and findings recorded by the Magistrate. Mr. Ray also does not dispute the correctness of this proposition. I am clearly of opinion that though a final order under Section 147, Cr.P.C. may not be a judgment within the meaning of Sections 366 and 367, Cr. P.C. it is absolutely mandatory that the Magistrate should fully go through the written statements and evidence on record and then arrive at clear findings on the points in issue between the parties. Judged by the aforesaid tests, the order dated 17-5-1964 cannot be upheld and must be set aside.

4. Mr. Ray then contended that this order is without jurisdiction, is a nullity and as such can be ignored. This contention is not correct. The crucial test is that, if no revision had been filed in High Court, whether the order dated 17-5-1964 would be effective proprio vigore. There cannot be any doubt about the proposition that the order would be a perfectly valid order, and if no appeal is filed in a Civil Court within the requisite statutory period of limitation, it would be a final order affecting the rights of the party against whom it has been passed. The order, therefore, cannot be one without jurisdiction though it is not a speaking order. 'Unless revised, it is final and conclusive as between the parties.

5. If the order dated 17-6-64 is one passed within the jurisdiction, it is unsupportable being contrary to law inasmuch as it was not a speaking and reasoned order. But being a fully valid order within jurisdiction, there is no further jurisdiction in the Magistrate to deal with the matter. The order dated 30-6-64, though a speaking order, is without jurisdiction and must he quashed.

6. In view of my observation that the order dated 17-5-1964 is liable to be set aside and the order dated 30-6-1964 is to fee ignored as being without jurisdiction, the only appropriate order that can be passed in the circumstances of the case is to remand it. It is agreed amongst the parties that they would not be allowed to lead any further evidence except filing the trial court and appellate court judgments. The Magistrate is also directed to make a spot visit. The parties must be given full opportunities to advance their arguments. The case will be disposed of in accordance with law and the directions given above by another competent Magistrate to be chosen by the S.D.O., Cuttack Sadar.

7. The revision is allowed and the case is remanded as directed above.


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