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Dharnidhar Sahu and ors. Vs. Mani Nahak and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1973CriLJ120
AppellantDharnidhar Sahu and ors.
RespondentMani Nahak and ors.
Excerpt:
.....as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. it is next contended that the first order giving rise to the proceeding is not in accordance with law and as the learned magistrate was never satisfied about the need of such a proceeding in terms of the provisions of sub. 3. having seen the respective contentions in the case i am satisfied that the proper proceeding in this case should have been under section 147 cr. and the learned magistrate after he was satisfied about apprehension of breach of peace should have drawn up a proceeding under section 147 cr......by his final order found in favour of the members of the first party. that is why the second party members are in revision before this court.2. two contentions are raised by mr. das for the petitioners. according to him the proper proceeding in tins case should have been under section 147 cr.p.c. and not under section 145 cr.p.c. the members of the second party have been substantially prejudiced because the enquiry has proceeded on the basis of section 145 cr.p.c. if it was under section 147 cr.p.c. they would have the benefit of leading evidence to establish their case. it is next contended that the first order giving rise to the proceeding is not in accordance with law and as the learned magistrate was never satisfied about the need of such a proceeding in terms of the provisions.....
Judgment:
ORDER

R.N. Mishra, J.

1. The members of the second party in a proceeding under Section 145. Cr.P.C. are the petitioners. The disputed property is said to be about 7 acres which was once upon a time a river bed. The lands are situated in the ex. State area of Keonjhar The learned Magistrate passed the following order on 18.9.70:

Seen the report of the Officer. Incharge, Anandapur Police Station submitted in his non. F.I.R. No 58/70 Issue notice to both the parties to appear in my court on 19.10.70 at 10.30 A.M. to prove their possession over the disputed lands.

Pursuant to such an order notices in the form prescribed In the Code of Criminal Procedure were Issued purporting to be under Section 145 Cr.P.C. Sub-section (1) of Section 145 Cr.P.C. provides,

Whenever... a Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.

The order dated 18.9.1970 of the learned Magistrate was certainly not in terms of the requirements of Sub-section (1) of Section 145 Cr.P.C. Notices were, however, issued in the prescribed form. Parties entered appearance. Neither party has any title to the property. The first party claimed as encroachers. The members of the second party laid claim of user by way of communal right. The learned Magistrate by his final order found in favour of the members of the first party. That is why the second party members are in revision before this Court.

2. Two contentions are raised by Mr. Das for the petitioners. According to him the proper proceeding in tins case should have been under Section 147 Cr.P.C. and not under Section 145 Cr.P.C. The members of the second party have been substantially prejudiced because the enquiry has proceeded on the basis of Section 145 Cr.P.C. If it was under Section 147 Cr.P.C. they would have the benefit of leading evidence to establish their case. It is next contended that the first order giving rise to the proceeding is not in accordance with law and as the learned Magistrate was never satisfied about the need of such a proceeding in terms of the provisions of sub. Section (1) of Section 145 Cr.P.C. the proceeding is vitiated. According to him the existence of apprehension of breach of peace gives jurisdiction to initiate a proceeding and the absence of record of such satisfaction in the order dated 18.9.70 goes to the root of jurisdiction and the proceeding IS vitiated.

3. Having seen the respective contentions in the case I am satisfied that the proper proceeding in this case Should have been under Section 147 Cr.P.C. and the learned Magistrate after he was satisfied about apprehension of breach of peace should have drawn up a proceeding under Section 147 Cr.P.C. The distinction between the provisions of Sections 145 and 147 Cr.P.C. is clear and to the allegations in this case the latter section was applicable.

4. I agree with Mr. Das that the learned Magistrate should have passed an order in terms of the requirements of Sub-section (1) of Section 145 Cr.P.C. In view of ray finding that the proper proceeding was one under Section 147 Cr.P.C. the utility of the preliminary order really goes. But I would not refrain from saying that the issue of the subsequent notices where satisfaction of the Magistrate has been really recorded and the submission of the members of the second party to the jurisdiction of the Magistrate in participating in the proceeding until the final stage should really be used as grounds not to permit such a contention to be raised at the belated stage.

It Is true, recording of satisfaction gives jurisdiction to the Magistrate, but such satisfaction though not recorded in the order. sheet is also mentioned in the notice issued by the Magistrate. There have been cases where the initiation of the proceedings has been upheld even in the absence of a formal order in the ordersheet because the notice containing the original signature of the Magistrate has been taken to be sufficient for Initiating a proceeding under Section 145 Cr.P.C. Therefore. I do not attach importance to the second contention.

5. In view of what I have already said, the entire proceeding must stand quashed with full jurisdiction left to the learned Magistrate in case present circumstances so need to initiate a proceeding under Section 147 Cr.P.C. and have it disposed of in accordance with law. The revision is allowed.


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