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Kirti Chandra Bariha Vs. Dukhu Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1970CriLJ936
AppellantKirti Chandra Bariha
RespondentDukhu Das and anr.
Cases ReferredGangadhar Singh v. Shyam Sundar Singh
Excerpt:
.....aforementioned decision, the delay in this case was mainly due to the laches of the party and not due to the magistrate, as it was necessary for him to be satisfied before he initiated the proceeding. when, admittedly, therefore, 1st party was out of possession since october 1964, the learned magistrate clearly erred in declaring him to be in possession either by construing that he will be deemed to have been in possession on the date of the preliminary order or deemed to have been forcibly and wrongfully dispossessed within two months preceding that date......and parties were directed to file theft written statements, documents and affidavits.member-slid party (opposite party no. 2) did not contest the case nor file any written statement or other documents. the present petitioner filed his written statement, documents and affidavits. so also, opposite party no. 1 filed certain documents and five affidavits, besides his written statement. on a consideration of these documents and affidavits, the learned magistrate passed the impugned order.2. the contentions, in this revision, advanced for the petitioner are that (1) the learned magistrate's order is without jurisdiction as if has been found that opposite party no. 1 was not in possession of the disputed lands either on the date of the preliminary order which was passed on 11-4-1966 or.....
Judgment:
ORDER

A. Misra, J.

1. The revision is directed against an order declaring that member-1st Party who is Opposite Party No. 1 is entitled to possession of the disputed lands and ordering restoration of possession to him in a proceeding under Section 145, Cr. P. C. Opposite Party No. 1 filed a petition on 22-1-1968 before the learned Magistrate alleging that while he was in cultivating possession of the disputed lands, they were attached by the police on 17-10-1964 and prayed for restoration of possession. On the learned Magistrate directing the police for a report, the officer-in-charge of the police station in his report dated 4-3-1966 informed the learned Magistrate that he had already submitted a report to start a proceeding under Section 145, Cr. P. C. on 29-10-1964. The learned Magistrate apprehending breach of the peace, passed a preliminary Order under Section 145, Cr. P. C. and parties were directed to file theft written statements, documents and affidavits.

Member-Slid Party (Opposite Party No. 2) did not contest the case nor file any written statement or other documents. The present petitioner filed his written statement, documents and affidavits. So also, Opposite Party No. 1 filed certain documents and five affidavits, besides his written statement. On a consideration of these documents and affidavits, the learned Magistrate passed the impugned order.

2. The contentions, in this revision, advanced for the petitioner are that (1) the learned Magistrate's order is without jurisdiction as if has been found that Opposite Party No. 1 was not in possession of the disputed lands either on the date of the preliminary order which was passed on 11-4-1966 or (nor?) was forcibly and wrongfully dispossessed from the said lands within two months preceding the date of the preliminary order and (2) the learned Magistrate was not justified in passing the preliminary order on 11-4-1.966 on the basis of a police report dated 29-10-1964 after lapse of such a long time.

3. For disposal of this revision, it is not necessary to consider the second contention, as in my opinion, the first contention of petitioner must prevail. It is not disputed that Opposite Party No. 1 was not in possession of the disputed lands either on the date of the preliminary order, i.e., 11-4-1966 or at any time within two months preceding that date. According to Opposite Party No. 1 and the finding of the learned Magistrate, the dispossession had taken place as early as 1964. It is, however, contended for Opposite Party No. 1 that he cannot be deemed to have been dispossessed in 1964, because his actual dispossession was due to the police restraining him from entering upon the lands. The learned Magistrate relied on a decision of this Court reported in : AIR1954Ori183 and observed that in this particular case, even though the cause of action arose on 17-10-1964, the delay in passing the preliminary order was due to the late receipt of the P. R. by the Court,

The question of jurisdiction of a Magistrate in a proceeding under Section 145, Cr. P. C., came up for consideration before a Division Bench of this Court in the decision reported in : AIR1958Ori153 Gangadhar Singh v. Shyam Sundar Singh, The existing divergent views were examined and it was observed:

Merely by filing a petition for preventive action under Section 145 or reporting the matter to the police, a party is not relieved from taking any further steps to persuade the Magistrate to draw up a proceeding, If there was delay due to local enquiry or otherwise in drawing up the proceeding, a party will not be permitted to take the date of his petition or the date of his reporting the matter to the police; to be the starting point for computation of the period of two months for the purpose of applying proviso (2) to Section 145(4), Cr. P. C. The delay in such a case is due to the failure of the party to satisfy the Magistrate about such apprehension of breach of the peace and not due to the Magistrate.

4. In the present case, what has transpired is that the matter was reported to the police in 1964 when disturbance to possession is said to have occurred. Thereafter, till 21-1-1966, 1st Party did not take any steps to move or persuade the Magistrate to draw up a proceeding. It is only on 22-1-1966 that he filed a petition oft which the learned Magistrate called for a report from the police and was informed that a report had already been submitted to him on 29-10-1964. If the party had shown due diligence and proved to the satisfaction of the Magistrate by moving a petition before him or otherwise, a proceeding could have been started within two months of the alleged dispossession. As has been held in the aforementioned decision, the delay in this case was mainly due to the laches of the party and not due to the Magistrate, as it was necessary for him to be satisfied before he initiated the proceeding. When, admittedly, therefore, 1st party was out of possession since October 1964, the learned Magistrate clearly erred in declaring him to be in possession either by construing that he will be deemed to have been in possession on the date of the preliminary order or deemed to have been forcibly and wrongfully dispossessed within two months preceding that date. In these circumstances, as the petitioner must beheld to have been in possession of the disputed lands since more than two months prior to the date of the preliminary order, is possession should be maintained until evicted in due course of law.

5. In the result, the revision is allowed and the impugned order passed by the learned Magistrate is set aside.


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