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Chandan Bilasini Dasi Vs. Sk. Hanif Mahammad and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1971CriLJ126
AppellantChandan Bilasini Dasi
RespondentSk. Hanif Mahammad and ors.
Cases ReferredMst. Alarakhi Bibi v. Mat
Excerpt:
.....in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - bose had received the notice on 4-5.65 and had endorsed on the notice that he received the notice on behalf of chandan bila-sini dasi......bilasini dasi, the petitioner (who is now reported to be dead) in the proceeding before the learned magistrate.2. during the pendency of this reference chandan bilasini was found to have died. a report wag called for from the learnad magistrate as to who should be substituted in her place. the learned magistrate reported the details of the legal representatives who had since been noticed from this court. but these legal representatives in spite of notice have preferred to remain absent.3. the short point upon which the reference was made by the learned additional district magistrate wag that there had been no service of notice on chandan bilasini dasi during the pendency of the proceeding under section 145, criminal p.c., before the learned magistrate. from the records it.....
Judgment:
ORDER

R.N. Misra, J.

1. The learned Additional District Magistrate (Executive), Cuttack, has made this reference recommending the quashing of a final order Under Section 145, Criminal P.C., on the sole ground that there had been no adequate service of notice on Chandan Bilasini Dasi, the petitioner (who is now reported to be dead) in the proceeding before the learned Magistrate.

2. During the pendency of this reference Chandan Bilasini was found to have died. A report wag called for from the learnad Magistrate as to who should be substituted in her place. The learned Magistrate reported the details of the legal representatives who had since been noticed from this Court. But these legal representatives in spite of notice have preferred to remain absent.

3. The short point upon which the reference was made by the learned Additional District Magistrate wag that there had been no service of notice on Chandan Bilasini Dasi during the pendency of the proceeding Under Section 145, Criminal P.C., before the learned Magistrate. From the records it transpired that one Shree R. C. Bose had received the notice on 4-5.65 and had endorsed on the notice that he received the notice on behalf of Chandan Bila-sini Dasi. Chandan Bilasini did not go before the learned Magistrate who was in seisin of the proceeding Under Section 145, Criminal P.C., but came before the learned Additional District Magistrate and asked for the reference to be made to this Court. There is no material on record to show that Sri R. C. Bose had due authority on bdhalf of Chandan Hilasini to be served with notice. If the matter was left at that point, I would have accepted the reference and adopted the same view as weighed with the learned Additional District Magistrate. But the position in respect of a proceeding Under Section 145, Criminal P.C. particularly where the land in dispute had been attached after the preliminary order was passed seems to be different. Courts have taken the view that a proceeding Under Section 145, Criminal P.C. is more with reference to the land in dispute than with reference to the patties to whom the land belongs or the persons who claimed right of possession in respect of such property. Admittedly in this case the land had been brought under attachment and attachment has been accepted by the learned Magistrate to have been validly made. The learned Additional District Magistrate has not taken a contrary view in the matter of attachment. The point seems to have been concluded both in the Patna High Court and in this Court in several decisions. Reference may, however, be made to a decision of the Patna High Court in A.I.R. 1829 Patna 505, Jainath v. Ramlakhan and two decisions of this Court in (1958) 25 Out L T 39, Dass Mohanto v. Prahlad Mohanto and 31 Out LT 1112 : (MR 1966 Orisaa 49), Mst. Alarakhi Bibi v. Mat, Ujala Bibi, On the authority of those decisions I think the proper course for me would be to accept the fact that on account of the attachment of the land in dispute a person who claimed interest in the property must have had notice of the proceeding itself. On that basis I would not interfere with the final order of the learned Magistrate and would not accept the recommendation now made in this reference.

4. Mr. Sahu who appeared for the State brought to my notice that the recent decision of the Division Bench of this Court in which it was indicated that the affidavits for being used to support the claim of possession in a proceeding Under Section 145, Criminal P.C. must be sworn to before the learned Magistrate who has seisin of the proceeding. In the present case one affidavit seems to be not in order. But that question need not be raised in a case of this type where one party did not appear at all and allowed the proceeding to go ex parte. I find that the remaining affidavits on behalf of the opposite parties were sworn before the same Magistrate and can be utilised. In the circumstances, even if one affidavit is ruled out being not in order, on the basis of the remaining throe affidavits the claim of possession on ex parte basis can be found and hag been rightly found by the learned Magistrate. In the circumstances, I am not prepared to accept the contention that on account of defect in affidavits the matter should go back and any fresh opportunity need be given to the person who had not appeared at all in the Court below.

5. On the aforesaid reasons the reference must be discharged. The final order of the learned Magistrate must, therefore, be sustained.


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