Skip to content


Gokulananda Panda and ors. Vs. Jagannath Panda and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 225 of 1983
Judge
Reported in1985(I)OLR171
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 144 and 145
AppellantGokulananda Panda and ors.
RespondentJagannath Panda and ors.
Appellant AdvocateB. Pal, R. Behera, S. Mohapatra and B. Baug
Respondent AdvocateB.B. Ratho, P.K. Bhuyan, R.P. Mohapatra and M. Misra
DispositionRevision allowed
Excerpt:
.....v smt gita banik, 1996 (2) glt 246, are not good law]. - c, proceeding and .on 25. 11. 1981 the learned magistrate on perusal of the police report and on being satisfied that there was a dispute between the parties likely to cause imminent breach of peace passed an order under section 145(1) cr. as regards the second ground it would be useful to record the following observations of the learned sessions judge :in the instant case when the dispute is pending in the honourable supreme court against the decision of hon'ble high court regarding the disputed land the learned executive magistrate should has (sic) respected the orders of the hon'ble high court against whose decision the defeated party has approached the hon'ble supreme court in the light of said decision. 1. if upon..........of khata nos. 92 and 17 respectively of mouza hundata. admittedly the aforesaid lands belonged to rahas pandiani, widow of the late laxrninarayan panda. petitioners' case is that petitioner no. 1 was the adopted son of laxminarayan panda and rahas pandiani and that he has eight annas interest in the lands of laxminarayan and her adoptive mother, rahas pandiani, has eight annas interest in the lands of the late laxminarayan panda including the disputed lands. petitioner no. 2 is the natural brother and petitioner no. 3 is the natural father of petitioner no. 1 the opposite parties' case, on the other hand, is that petitioner no. 1 is not the adopted son of laxminarayan and rahas pandiani and that after the death of laxrninarayan his lands including the disputed lands had devolved.....
Judgment:

B.N. Misra, J.

1. The first party members in M. C. No. 340/81, a proceeding under Section 145 of the Code of Criminal Procedure, in the file of the learned Executive Magistrate, Chatrapur, are the present petitioners.

2. The dispute relates to Act 7. 79 cents of land appertaining to plot Nos. 121, 162, 215, 217, 192, 79 and 94 of Khata No. 30 of Moaza khasalapali, plot No. 425 of Khata No. 149 of Mouza Sahapur and plot Nos. 211 and 19 of Khata Nos. 92 and 17 respectively of Mouza Hundata. Admittedly the aforesaid lands belonged to Rahas Pandiani, widow of the late Laxrninarayan Panda. Petitioners' case is that petitioner No. 1 was the adopted son of Laxminarayan Panda and Rahas Pandiani and that he has eight annas interest in the lands of Laxminarayan and her adoptive mother, Rahas Pandiani, has eight annas interest in the lands of the late Laxminarayan Panda including the disputed lands. Petitioner No. 2 is the natural brother and petitioner No. 3 is the natural father of petitioner No. 1 The opposite parties' case, on the other hand, is that petitioner No. 1 is not the adopted son of Laxminarayan and Rahas Pandiani and that after the death of Laxrninarayan his lands including the disputed lands had devolved exclusively on Rahas Pandiani. Thereafter, around the year 1952 Rahas Pandiani on her own right had sold the disputed lands to the opposite parties and others and since then the opposite parties have remained in possession of the lands.

3. It may be noted that in respect of plot Nos. 121, 162, 215, 217 and 19, a petition was filed by opposite party No. 1 under Section 144 of the Code of Criminal Procedure on 20. 11. 1981 and an order was passed by the learned Magistrate under Section 144(1) of the Code restraining the petitioners from entering upon the five plots referred to above forming the subject-matter of dispute in the 144 Cr. P. C, proceeding. Thereafter on 24. 11. 1981 the Officer-in-charge- of, Purushottam put P.S. submitted a report to the learned Magistrate in respect of the lands forming the subject-matter of the present 145 Cr. P. C, proceeding and . on 25. 11. 1981 the learned Magistrate on perusal of the police report and on being satisfied that there was a dispute between the parties likely to cause imminent breach of peace passed an order under Section 145(1) Cr.P.C. directing the parties to appear before him on 7.12.1981 and to file their written statements. In the 145 Cr. P. C. proceeding, the present petitioners are the members of the first party and the present opposite parties are members of the second patty. Thereafter the opposite parties filed a petition before the learned Magistrate under Section 145(5) Cr. P. C., praying for rescision of the order passed by the learned Magistrate under Section 145(1) Cr. P. C., in respect of the five plots forming the subject matter of the proceeding under Section 144 Cr. P. C., and plot No 192 of Khata No. 30. The learned Magistrate by his order dated 23.8.1982 rejected the aforesaid petition filed by the opposite parties. Thereafter the opposite parties filed Criminal Revision No. 109/82 before the learned Sessions Judge, Ganjam-Boudh against the order dated 23.8.1982 of the learned Magistrate. After hearing counsel, by his order dated 7.4.1983 the learned Sessions Judge quashed the proceeding under Section 145 Cr. P.C. This order of the learned Sessions Judge is under challenge in this revision.

4. Mr. Bansidhar Baug, learned counsel appearing for the petitioners, and Mr. M. Misra, learned counsel appearing for the opposite parties, have submitted at the Bar that there was a civil litigation between the parties wherein the adoption of petitioner No. 1 was under challenge and that this Court in First Appeal No. 61 of 1965 (disposed of on 6. 9. 1972) gave a declaration that petitioner No. 1 was the adopted son of the late Laxminarayan and Rahas Pandiani and that the alienations made by Rahas Pandiani in favour of the opposite parties in respect of the lands forming the subject-matter of the present dispute and other lands were not binding on petitioner No. 1 to the extent of his share therein. As further submitted by counsel, the aforesaid judgment of this Court is at present pending disposal before the Supreme Court.

5.On a perusal of the impugned order, it appears that the learned Sessions Judge quashed the proceeding under Section 145, Cr. P. C. mainly on two grounds. The first ground is that since the learned Magistrate had passed an order under Section 144 Cr. P. C. in respect of some of the lands forming the subject-matter of the 145 Cr. P.C., proceeding, he should not have exercised his jurisdiction under Section 145 Cr. P. C. As regards the second ground it would be useful to record the following observations of the learned Sessions Judge :

''In the instant case when the dispute is pending in the Honourable Supreme Court against the decision of Hon'ble High Court regarding the disputed land the learned Executive Magistrate should has (sic) respected the orders of the Hon'ble High Court against whose decision the defeated party has approached the Hon'ble Supreme Court in the light of said decision.'

Both the grounds put forward in the impugned order are not tenable. The learned Sessions Judge seems to have overlooked the fact that the proceeding under Section 145 Cr. P. C, was separately initiated by the learned Magistrate on receipt of a police report while the proceeding under Section 144 Cr. P. C, had been initiated at the instance of opposite party No. 1. If upon consideration of the police report and other materials the learned Magistrate was satisfied that there were reasons for proceeding under Section 145 Cr. P. C, he could exercise his jurisdiction under the said section even if he had passed a previous order under Section 144 Cr. P. C, The learned Sessions Judge should have borne in mind that when he decided the revision on 7. 4. 1983, the order passed by the learned Magistrate under Section 144 Cr. P. C, had long since spent its force and even on 23. 8. 1982 when the learned Magistrate rejected the application of the opposite parties under Section 145(5) Cr. P. C., the two-month period was already over. As regards the second ground, the learned Sessions Judge perhaps read the High Court judgment wrongly because, as submitted by counsel on both sides, this Court has decided that petitioner No. 1 is the adopted son of Laxminarayan and Rahas Pandiani and the alienations made by Rahas Pandiani in favour of the opposite parties do not bind him in respect of his share in the lands of Laxminarayan including the lands forming the subject-matter of the present dispute. Moreover questions of title are beyond the scope of an enquiry under Section 145 Cr. P. C.

6. Mr. Misra learned counsel appearing for the opposite parties, submitted that the order of the learned Magistrate in so far as it is made against all the opposite parties who have been clubbed together is without jurisdiction and in support of this contention reliance is placed on a decision of this Court reported in 1971 (1) CWR 377 : Sudarsan Das and other v. Jagannath Roul. It is not necessary that this point should be decided by this Court without the matter being first considered by the learned Magistrate.

7. For the reasons stated above, this revision is allowed and the order dated 7. 4. 1983 passed by the [earned Sessions Judge is set aside. The 145 Cr. P., C, proceeding is restored to the file of the learned Executive Magistrate, Chatrapur who shall now proceed with the case and dispose of the same according to law as expeditiously as possible. It will be open to the opposite parties to raise objection before the learned Magistrate as to the clubbing together of all the opposite parties in the proceeding under Section 145 Cr. P. C. and if such a point is raised, the learned Magistrate should also consider and decide the same in accordance with law. The L. C. R. be sent back immediately.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //