Skip to content


Baidhar Behera and ors. Vs. Dibyasingha Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in38(1972)CLT1160; 1973CriLJ738
AppellantBaidhar Behera and ors.
RespondentDibyasingha Sahu and ors.
Cases ReferredMuralidhar v. Chaturbhuja
Excerpt:
.....when the 3rd party was added on 14.1.1969, no fresh preliminary order was drawn up and the learned magistrate added a party without expressing clearly that he was satisfied that there was apprehension of breach of the peace in regard to the disputed property with reference to the new party; it is well settled by now that the extraordinary jurisdiction conferred under, the constitution cannot be curtailed or taken away by any statutory provision. sub-divisional magistrate, muzaffarnagar air1965all442 it has been clearly indicated that the proper remedy against a final order under sections 145 and 146 of the code of criminal procedure is the suit contemplated under section 146(1e) of the code and not a proceeding for a writ of certiorari. it is a well settled principle that even..........the three petitioners who were members of the first party in a proceeding under section 145 of the code of criminal procedure.2. the preliminary order under sub-section (1) of section 145 of the code was drawn up on 26.7.1968. the disputed property with an area of 3 acres appertains to plot numbers 1000 and 1000/ 1889. on 14.1.1969, a third party laid claim and on his own petition was added. the preliminary order, however, was not altered by the learned magistrate nor was a fresh order drawn up, the learned magistrate was unable to decide as to which of the parties was in possession on the date of the preliminary order. accordingly he referred the dispute to the munsif having territorial jurisdiction for determination of the dispute as provided under section 146(1) of the code. before.....
Judgment:

R.N. Misra, J.

1. This is an application for a writ of certiorari at the instance of the three petitioners who were members of the first party in a proceeding under Section 145 of the Code of Criminal Procedure.

2. The preliminary order under Sub-section (1) of Section 145 of the Code was drawn up on 26.7.1968. The disputed property with an area of 3 acres appertains to plot numbers 1000 and 1000/ 1889. On 14.1.1969, a third party laid claim and on his own petition was added. The preliminary order, however, was not altered by the learned Magistrate nor was a fresh order drawn up, the learned Magistrate was unable to decide as to which of the parties was in possession on the date of the preliminary order. Accordingly he referred the dispute to the Munsif having territorial jurisdiction for determination of the dispute as provided under Section 146(1) of the Code. Before the Munsif no further evidence was offered. On the basis of the affidavits and documents placed by the parties before the Magistrate, which had been forwarded to the Munsif. the learned Munsif decided that the members of the second party were in possession of plot No. 1000 with an area of 2.15 acres and plot No. 1000/1889 with an area of 0.79 decimals. On his finding being sent to the Magistrate, the Magistrate passed an order in terms of Section 146(1B) of the Code.

3. The petitioners have asked for a writ of certiorari on the allegation that under Section 146(1-D) no appeal lies from the finding of the Civil Court and review or revision of the finding is not permitted. It is contended that (1) the learned Magistrate's final order is not in accordance with the provisions of Section 145(6) of the Code; (2) the preliminary order was made on 26.7.1968. When the 3rd party was added on 14.1.1969, no fresh preliminary order was drawn up and the learned Magistrate added a party without expressing clearly that he was satisfied that there was apprehension of breach of the peace in regard to the disputed property with reference to the new party; (3) though the disputed property had a total area of 3 acres, the final order found possession in regard to 2.94 acres and omitted to decide the dispute in regard to 6 decimals.

4. Reliance is placed on behalf of the petitioners upon a decision of the Patna High Court in the case of Raja Singh v. Mahendra Singh : AIR1963Pat243 where in a similar case it was held that the High Court in exercise of powers under Article 227 of the Constitution has jurisdiction to interfere and set right illegalities. It is well settled by now that the extraordinary jurisdiction conferred under, the Constitution cannot be curtailed or taken away by any statutory provision. Therefore, Section 146(1-D) of the Code of Criminal Procedure can certainly not override the constitutional provision contained in Articles 226 and 227.

5. Section 146(1E) of the Code provides that an order under Section 146(1) shall be subject to the decision of the Civil Court of competent jurisdiction. While there may be absolutely no doubt about the jurisdiction of this Court to interfere with the final order passed under Section. 145 following a reference under Section 146 of the Code, in exercise of powers under Articles 226 and 227, it is for consideration as to whether in view of a clear alternate remedy provided in the statute, there should be any interference.

In the case of Chokhey Lal Moti Ram v. Babulal Behari Lal : AIR1960All599 and in the case of Ghanshiam Das v. Sub-Divisional Magistrate, Muzaffarnagar : AIR1965All442 it has been clearly indicated that the proper remedy against a final order under Sections 145 and 146 of the Code of Criminal Procedure is the suit contemplated under Section 146(1E) of the Code and not a proceeding for a writ of certiorari. Similar view has been expressed in the case of Rengammal v. Rama Subbarayalu : AIR1960Mad169 . Even in the Patna decision referred to above though it was found that the High Court has jurisdiction to interfere, interference was not made. It is a well settled principle that even though a particular statute may not take away or abridge the jurisdiction conferred on a High Court under Articles 226 and 227 of the Constitution, yet in exercise of extraordinary jurisdiction, a High Court normally keeps in view the scheme of the statute which makes a particular order final and is slow to overlook the scheme unless there is an infringement of a serious type requiring interference. Ordinarily the statutory remedy is allowed to be worked out.

6. The records of the subordinate Court have not been brought before us and we are not in a position to see the correctness of some of the allegations raised before us. It is true, the Magistrate has over-looked to decide the claim of possession in regard to 6 decimals. A revision in regard to the dispute regarding 6 decimals which was not decided by the Munsif under Section 146(1) of the Code of Criminal Procedure would have been maintainable before this Court, if the petitioners had applied under Section 439 of the Code of Criminal Procedure as there would have been no bar under Section 146(1D) in regard to such property. There may be a practical difficulty in giving effect to the order of the learned Magistrate in regard to plot No. 1000/1889. We however, do not propose to exercise our extraordinary jurisdiction in this case because, the petitioners have failed to exercise their remedy available under the Code of Criminal Procedure and a mistake of this type can be rectified in a suit, if filed.

7. The next contention of Mrs. Padhi is with, reference to the addition of the third party. She contends that the decision of this Court in the case of Muralidhar v. Chaturbhuja (1968) 34 Cut-LT 655, that by implication of a third party in the proceeding, two independent proceedings have been clubbed together, does not arise for consideration. We do not propose to examine the correctness of that decision in this case, because, in our view ultimately the remedy lies in the Civil Court. We would accordingly dismiss the writ petition. There would be no order as to costs.

B.K. Ray, J.

I agree.


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