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Damodar Das Babaji Vs. Harihar Nahak and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1977CriLJ1392
AppellantDamodar Das Babaji
RespondentHarihar Nahak and ors.
Cases Referred(Dandapani Pala v. Madan Mohan Pala
Excerpt:
.....glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - hence the order of the learned sessions judge directing the learned magistrate to give opportunities to the parties to file affidavits and to consider the same while disposing of the case after remand is clearly without jurisdiction......in dispute. the opposite parties filed counter on 6-8-1974. after hearing both the parties the learned magistrate by his order dated 13-8-1974 converted the proceeding under section 144 cr. p. c, to one under section 145 cr. p. c. by the same order the lands in dispute were attached and a receiver was appointed. the parties were directed to file their written statements and produce evidence in support of their respective contentions. on 18-12-1974 the petitioner filed an application before the learned magistrate stating therein that some of the opposite parties had filed a case before the revenue officer under section 15(1)(b) of the o. l. r. act in o. l. r. case no. 41 of 1974 for a declaration of their tenancy right in respect of the lands in dispute and for benefits under the o......
Judgment:
ORDER

P.K. Mohanti, J.

1. This Criminal Revision is directed against an order of the learned Sessions Judge of Ganjam-Boudh settinsg aside a final order Under Section 145, Cr. P. C, and remanding the case for a fresh disposal.

2. On 15-6-1974 the learned Sub-divisional Magistrate of Chatrapur passed an order Under Section 144 Cr. P. C, restraining the opposite parties from interfering with the possession of the petitioner over the lands in dispute. The opposite parties filed counter on 6-8-1974. After hearing both the parties the learned Magistrate by his order dated 13-8-1974 converted the proceeding Under Section 144 Cr. P. C, to one Under Section 145 Cr. P. C. By the same order the lands in dispute were attached and a receiver was appointed. The parties were directed to file their written statements and produce evidence in support of their respective contentions. On 18-12-1974 the petitioner filed an application before the learned Magistrate stating therein that some of the opposite parties had filed a case before the Revenue Officer Under Section 15(1)(b) of the O. L. R. Act in O. L. R. Case No. 41 of 1974 for a declaration of their tenancy right In respect of the lands in dispute and for benefits under the O. L. R. Act and that the Revenue Officer after necessary enquiry had dismissed the case on 15-10-1974 holding that the lands in dispute were in cultivating possession of the petitioner and that no relationship of landlord and tenant existed between the parties.

The petitioner accordingly prayed that in view of the decision of the competent court the proceeding Under Section 145 Cr. P. C. should be dropped. But his prayer was rejected. After hearing the parties and considering the decision of the O. L. R. Court the learned Magistrate passed final orders Under Section 145 Cr. P. C. declaring the possession of the petitioner over the land in dispute. Aggrieved by this final order the opposite parties filed a criminal revision before the learned Sessions Judge who by his order dated 6-10-1975 set aside the final order Under Section 145 Cr. P. C. on the ground of non-consideration of the affidavits filed by the opp. parties and remanded the case for fresh disposal with a direction to the learned Magistrate to give opportunities to the parties to file affidavits in proof of their respective possession over the lands in dispute. It is against that order of the learned Sessions Judge that this criminal revision has been preferred.

3. Mr. Y. S. N. Murty, the learned Counsel appearing on behalf of the opposite parties raised a preliminary objection that the order of remand being an interlocutory order cannot be interfered with by a revisional court in view of the ban imposed by Section 397(2) Cr. P. C. In support of his contention he placed reliance on a decision of this Court reported in 1975 Cut LT 674 : 1975 Cri LJ 1923 (Bhima Naik v. State), This contention is not acceptable. The order of the learned Sessions Judge is vitiated by serious errors of law and jurisdiction and this Court in exercise of its inherent powers can interfere to secure the ends of justice.

4. On a reference to the records it appears that the learned Magistrate by his order dated 13-8-1974 attached the subject-matter of dispute and appointed a receiver in relation to the same. The power to attach the subject-matter of dispute and to appoint a receiver could be exercised only under the provisions of Section 146, Cr. P. C. Under the scheme of the new Code, once these steps were taken, the proceeding Under Section 145, Cr. P. C. came to an end. The effect of the attachment is to place the property in custodia legis until a competent court has determined the rights of the par ties. The Magistrate's jurisdiction is restricted only to the prevention of the breach of the peace. After the properties were placed in custodia legis there was no longer any danger of breach of the peace. The Magistrate had, therefore, no jurisdiction to continue the proceedings Under Section 145, Cr. P. C. after attachment of the lands and appointment of a receiver in relation to the same. In 1976 Cut LR (Gri) 305 : 1976Cri LJ 2014 (Dandapani Pala v. Madan Mohan Pala) a Division Bench of this Court held that after the order of attachment and appointment of receiver is passed the proceeding Under Section 145, Cr. P, C. comes to an end and the Magistrate cannot proceed further to enquire into the question of possession.

5. Admittedly there was a proceeding Under Section 15(1)(b) of the Orissa Land Reforms Act between the parties for the selfsame lands and it was decided in favour of the petitioner on 15-10-1974 on the findings that there was no relationship of landlord and tenant between the parties and that the petitioner was in cultivating possession of the lands. The order of attachment passed by the learned Magistrate ceased to have effect when the competent court determined the rights of the parties. It was therefore the duty of the Magistrate to discharge the receiver and to direct him to hand over possession of the lands to the petitioner. Instead of giving effect to the decision of the competent court he continued the proceeding Under Section 145, Cr. P. C. and proceeded to enquire into the question of possession. The continuance of the proceedings Under Section 145, Cr. P. C. was without jurisdiction.

The order of the learned Sessions Judge remanding the case for a fresh disposal was also without jurisdiction. The order of the learned Sessions Judge was also vitiated on another score. While remanding the case for a fresh disposal he directed the Magistrate to give opportunities to the parties to file affidavits. He has completely overlooked the change in law under the new Cr. P. C. which admittedly governs the present case The requirement of filing affidavits contained in the old Section 145, Cr. P. C. has been done away with. Under the new Code the Magistrate is to consider the written statements of the parties and receive all such evidence as may be produced by them. Hence the order of the learned Sessions Judge directing the learned Magistrate to give opportunities to the parties to file affidavits and to consider the same while disposing of the case after remand is clearly without jurisdiction.

6. In the premises aforesaid, the Criminal Revision is allowed and the order of the learned Sessions Judge is set aside. The learned Magistrate is directed to give effect to the decision of the Revenue Officer, Kodala in O. L. R Case No. 41 of 1974 by discharging the Receiver and directing him to hand over possession of the lands to the petitioner. The amount of Rs. 2501.00 deposited by the Receiver as per the Magistrate's order dated 5-2-1874 should be paid to the petitioner.


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