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Pitabas Podhan Vs. Krushna Podhan and 3 ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 695 of 1966
Judge
Reported inAIR1968Ori232; 1968CriLJ1629
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 107, 144 and 145
AppellantPitabas Podhan
RespondentKrushna Podhan and 3 ors.
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateG. Rath, Adv.
Cases ReferredBanamali v. Baira Nahak. In
Excerpt:
.....1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - if there is any apprehension of breach of the peace, the unsuccessful party should be bound down under section 107, cr......under section 144, cr. p.c. on 16-11-66 an ex parte prohibitory order was passed. on 19-12-66 the learned magistrate converted the proceeding under section 144 into one under section 145. cr. p.c. the criminal revision has been filed against the propriety, of this order. 2. the order of the learned magistrate is indefensible. the matter is concluded by a series of decisions of this court, one of which is reported in ilr (1964) cut 182 = (air 1964 ori 204), banamali v. baira nahak. in a case of this nature, where recent delivery of possession has been effected through civil court, it is the paramount duty of the criminal court to see that the possession of the successful party is maintained. if there is any apprehension of breach of the peace, the unsuccessful party should be bound down.....
Judgment:
ORDER

G.K. Misra, J.

1. Opposite Parties 2 and 4 are the sons of Opposite Party 1. The petitioner (member first party) as plaintiff succeededin a suit for declaration of title and recovery of possession in S. A. No. 052/64 which was dismissed in his favour on 11 -8-66. In pursuance of the decree, delivery of possession was effected on 2-10-66. Apprehending disturbance in possession the petitioner made an application before the Magistrate that the opposite parties should be restrained from interfering with his possession of the land under Section 144, Cr. P.C. On 16-11-66 an ex parte prohibitory order was passed. On 19-12-66 the learned Magistrate converted the proceeding under Section 144 into one under Section 145. Cr. P.C. The criminal revision has been filed against the propriety, of this order.

2. The order of the learned Magistrate is indefensible. The matter is concluded by a series of decisions of this Court, one of which is reported in ILR (1964) Cut 182 = (AIR 1964 Ori 204), Banamali v. Baira Nahak. In a case of this nature, where recent delivery of possession has been effected through Civil Court, it is the paramount duty of the Criminal Court to see that the possession of the successful party is maintained. If there is any apprehension of breach of the peace, the unsuccessful party should be bound down under Section 107, Cr. P.C. The learned Magistrate fell into acomplete confusion of thought as he did not keep himself in touch with the recent development in law and converted the proceeding under Section 144, Cr. P.C. into one under Section 145, Cr. P.C. The proceeding under Section 145, Cr. P.C. is accordingly quashed and the learned Magistrate is directed to take action against the opposite parties under Section 107. Cr. P.C. if there is still further apprehension of breach of the peace. The order of the learned Magistrate is set aside and the Criminal Revision is allowed.

3. On behalf of the petitioner an application for contempt was filed to take action against the Sub-Inspector of police who was the receiver. He got the paddy harvested on 25-12-66 despite the matter having been brought to his notice that this Court had passed an order of stay. Mr. Pal however, does not press this application. It is accordingly discharged.

4. There is no denying of the tact thatthe opposite parties are entitled to a shareof the produce towards their costs of cultivation for the agricultural year 1966-67 Thepetitioner is to work out his rights as to hisshare in appropriate forum.


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