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Duriyodhan Jena Vs. Dharamu Jena and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1973CriLJ1577
AppellantDuriyodhan Jena
RespondentDharamu Jena and ors.
Excerpt:
.....become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 1. the unsuccessful first party member in a proceeding under section 145, criminal procedure code has filed this revision against the final order dated 11-10-71 passed by the magistrate, first class, naya-garh......pending either in the trial court or in the appellate court, any of the aggrieved parties may approach that court for a suitable order for the management of the property till the disposal of the suit or the appeal as the case may be. in case the said matter is no longer pending in any court and the magistrate considers that there is still cause for apprehension of breach of the peace bttween the parties, the magistrate can im- mediately start appropriate fresh proceedings in accordance with law, and deal with the matter in a firm and decisive manner.10. in view of all that have been discussed above i am of the opinion that this proceeding should be dropped and the order passed by the court below should not be given effect to in any manner.the impugned order is set aside and the.....
Judgment:
ORDER

S. Acharya, J.

1. The unsuccessful first party member in a proceeding under Section 145, Criminal Procedure Code has filed this revision against the final order dated 11-10-71 passed by the Magistrate, First Class, Naya-garh.

2. The first party's case in short is that he along with his sons and his brother, second party No. 6, were all along in possession of the disputed land till the date of its attachment They grew gram and vegetables on the said land, but as the second party members interfered with their possession the first party approached the Court and this proceeding was started. According to the first party, the second party members, excepting second party No. 6, were never in possession of the disputed land.

3. Excepting second party No. 6, all the other members of the second party, asserted that the first party and his brother, second party No. 6, were in possession of only 4 annas share out of the southern portion of each of the disputed plots which fell to the share of their father, and they along with their father were enjoying that portion of the land, and the second party members were in possession of the rest of the disputed plots.

The respective cases put forward by the parties in support of their claims have been stated and dealt with in detail in the impugned judgment and I do not deem it necessary to narrate the same once again.

4. Mr. Das, the learned Counsel for the petitioner, at the outset challenged the impugned judgment stating that the court having decided to refer the matter to the Civil Court on 20-1-71 became functus officio thereafter to deal with and decide the matter and so the impugned order is a nullity in law. The court's order dated 20-1-71 shows that on the materials still then before it the court was not in a position to decide as to which of the parties was in possession of the disputed land at the relevant time, and therefore it decided to refer the matter under Section 146, Criminal Procedure Code to the Munsif at Kendrapara. In accordance with that order a statement of facts was drawn up and the parties were directed to appear before the Munsif on 15-2-71. On 3-2-71, i.e., before the date on which the parties Were expected to appear before the Munsif in connection with this matter and before the transmission of the case records to the Munsif's court, three persons filed a petition before the court below to implead them as parties in this Section 145 proceeding. Along with the said petition some affidavits also were filed in the court below. Copies of all these Were served on the advocate of the first party.

On 3-2-71 the court ordered this matter to be put up on 5-2-71 for consideration as to whether the court was competent to accept the said petition at that stage. The matter could not be taken up on 5-2-71. On 9-2-71 the said petition was heard, and notice, asking both the parties to appear in the court below on 15-2-71 and not in the court of the Munsif, Kendrapara, was ordered to be issued. On 15-2-71 both the parties appeared in the court below. The matter could not be taken up for some reason or other on that and the several subsequent dates it was posted for orders or hearing in the court below. In the meantime another person filed another petition to be impleaded as a party in this proceeding. All the above-mentioned petitions were ultimately taken up for hearing on 25-5-71, and the advocates for the first and the second party, and of the above-mentioned petitioners who prayed to be impleaded as parties in this proceeding were all heard on that date. On hearing all the parties the court by its elaborate order dated 3-6-71 allowed the above-mentioned petitioners to be impleaded as parties in this proceeding. By the said order another opportunity was afforded to all the parties to file fresh affidavits and documents in this case by 2-7-71. On 2-7-71 the first party, the petitioner herein, filed two more affidavits. Others also filed some affidavits in support of their case. Thereafter the case was posted to 24-7-71 for hearing. After the passing of the said order dated 3-6-71 neither the first party nor anybody else challenged the legality, propriety or the correctness of the said order in any manner in any court Rather on 2-7-71 the first party filed some more affidavits in the court below in support of his case. All the parties including the petitioners continued to participate in that proceeding from date to date without raising any objection, and the first party again on 14-9-71 filed some more affidavits in support of his case, which were accepted even in spite of objections from the second party members. The hearing of the matter was concluded on 14-9-1971 and the impugned order was delivered on 11-10-71.

5. Thus from the facts stated above it is seen that the case records had never been sent to the Civil Court. Before the date of the appearance of the parties before the Civil Court the Magistrate got fresh materials before him and also expected further materials to come, which expectation was not belied. Accordingly, the Magistrate at that stage rightly thought, as mentioned in the order dated 3-6-71 that it would not be proper on his part in the aforesaid circumstances not to deal with the matter himself. He considered that shifting the responsibility of deciding the matter to the Civil Court at that stage would amount to shirking of responsibility in the matter.

6. Mr. Das has not been able to show any thing in the Criminal Procedure Code or any decision to the effect that the court becomes functus officio immediately after recording an order of the nature recorded on 20-1-71. The Magistrate should not ordinarily and as a matter of course refer a proceeding under Section 145, Criminal Procedure Code pending before him to the Civil Court under Section 146, Criminal Procedure Code. Reference, as specifically provided in Section 146, Criminal Procedure Code, can and should be made only when the Magistrate, on the materials before him, is of the opinion that it is not possible for him to decide as to which of the parties before him was actually in possession of the disputed property at the relevant time. Before referring the matter to the Civil Court the Magistrate must make an honest endeavour to decide the matter himself, and if he has adequate materials before him he should not shirk his responsibility to decide the matter.

7. Moreover, the jurisdiction of the Civil Court to deal with the matter begins only after the records are received in that Court, as is evident from the opening words in Clause (IA) of Section 146, Criminal Procedure Code. Further, the Civil Court has no jurisdiction to pass the final order in. such a matter. Its job under Section 146 is only to enquire into the question whether any and which of the parties was in possession of the subject-matter of the dispute at the relevant time, and to transmit its finding to that effect together with the record of the proceeding to the Magistrate by whom reference was made, as provided under Clause (IB) of the said Section. Under the said clause the Magistrate after receiving the aforesaid finding of the Civil Court is to dispose of the proceeding under Section 145 in conformity with the said Civil Court finding. So ultimately the Magistrate has to pass the final orders in the matter. Accordingly, it cannot be said that as soon as a Magistrate records his inability to decide the matter as stated in Clause (1) of Section 146, he becomes completely functus officio and/or loses seisin over the said proceeding. On a reading of the provisions of Section 146 I am of the opinion that a proceeding under Section 145, remains pending before the Magistrate even though he refers it to the Civil Court for the purpose stated therein. In the present case of course the matter had not gone before the Civil Court and the Civil Court had not dealt with the matter in any manner under Clause (IA) of Section 146. On the above considerations I am of the view that the Magistrate did not lose seisin over the proceeding and did not become functus officio after recording the ordef on 20-1-71, and accordingly no illegality has been committed by dealing with and disposing of the matter in the manner aforesaid.

8. Now turning to the merits of the impugned decision on facts, I find that the description of the disputed lands given by the first party is very vague and indefinite. The first party, after narrating the basis of his claim to the disputed lands, states that ia the year 1967 the said lands were divided into two parts between the first party and his brother Dhruba (Opposite Party No. 6). On that occasion a memorandum of partition was drawn up on 4-12-1967 and it was signed by Gumani Jena and Nityananda Jena, both members of the second party. According to the first party, in the said division only Ac. 0.29$ in the northern portion of Plot No. 790 fell to the share of the first party while the residue in the said plot and the whole of Plot No. 787 fell to the share of Dhruba, second Party No. 6. The court below, on an appreciation of the materials before it, finds that the first party and his brother, second Party No 6, were not ia exclusive possession of the disputed lands as claimed by them, but they were in possession of only four annas share from the southern portion of each of the disputed plots (Ac. 0.29i decimals from Plot No. 790 and Ac. 0.21 decimals from Plot No. 787). The rest of the area in these two plots was in possession of the second party members including those who purchased portions of the disputed plots as per the sale deeds filed in this caw.

The first party could not establish his claim to the disputed lands as stated by him in his written statement. When he claimed Ac. 0.291 decimals of land in the north of Plot No. 790, the court finds that he and second Party No. 6 were in possession of only four annas interest in the disputed lands in the southern portion of each of the two plots, namely, Plot Nos. 787 and 790. The order directing delivery of possession in favour of the parties is not precise and is rather sufficiently vague to create difficulties for the persons who are to deliver possession of the disputed lands to the respective parties. As the description of the property in possession of the different persons is extremely vague, the court should not have proceeded to decide the matter in the manner it has done. Moreover, as stated above, the conclusion of the court below cannot be properly implemented and would lead to confusion creating further difficulties between the parties.

9. Apart from the above, it is seen from the petition dated 22-12-70 filed by the second party members in the court below that during the pendency of this proceeding the second party members filed Title Suit No. 69/70 in the court of the Subordinate Judge, Nayagarh relating to the disputed lands. In the said petition it is stated that the members of the first party are defendants in the said suit. The above facts are not challenged.

There is nothing on record to which it can be said that after such a long lapse of time there is still apprehension of a breach of the peace between the parties, specially after the institution of the above-mentioned title suit in the court of the Subordinate Judge. It is not known if the Civil Court passed any suitable order for the proper management of the properties during the pendency of the suit, though it is expected that some arrangements to this effect must have been made by that court. In case no such order has yet been passed and the suit is still pending either in the Trial Court or in the Appellate Court, any of the aggrieved parties may approach that court for a suitable order for the management of the property till the disposal of the suit or the appeal as the case may be. In case the said matter is no longer pending in any court and the Magistrate considers that there is still cause for apprehension of breach of the peace bttween the parties, the Magistrate can im- mediately start appropriate fresh proceedings in accordance with law, and deal with the matter in a firm and decisive manner.

10. In view of all that have been discussed above I am of the opinion that this proceeding should be dropped and the order passed by the court below should not be given effect to in any manner.

The impugned order is set aside and the proceeding is dropped.

The revision is disposed of accordingly. The L. C. R. be sent back to the court below immediately.


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