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Paraga Pradhan Vs. Balaji Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 300 of 1981
Judge
Reported in1984(II)OLR939
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145, 145(1) and 145(5)
AppellantParaga Pradhan
RespondentBalaji Sahu and ors.
Appellant AdvocateS.S. Basu and ; S.S. Rao
Respondent AdvocateJ.K. Misra and ; B.B. Rath
DispositionPetition dismissed
Cases ReferredDuryodhan Jena v. Dharamu Jena and Ors.
Excerpt:
.....of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - he recommended initiation of a proceeding under section 145 of the code. 6. it will appear from the petition made by opposite parties 1 and 2, the report of the officer-in-charge, brajarajnagar police station, as well as, the preliminary order that the area of the disputed land and the nature thereof have been specified, although other descriptions, such as, plot number and boundaries have not been stated. 7. before parting with the case, i would like to observe that the proceeding under section 144 was initiated in the court below on 24. 2. 1981 and the preliminary order under section..........other members of the second party without having any right, demolished the house on the aforesaid disputed land on 20. 2. 1981. because of such action, there was apprehension of breach of peace and so they prayed for action under section 144 of the code. the subdivisional magistrate by order dated 24. 2.1981 directed the officer-in-charge of brajarajnagar police station to hold an enquiry and submit his report. the said officer-in charge made an enquiry and submitted a report to the court. he stated therein that the opposite parties claimed the disputed land which once belonged to one chedilal of belpahar. but they could not show any documentary evidence of acquisition. the petitioner on the other hand, claimed that pitamber pradhan, a member of the second party purchased the disputed.....
Judgment:

K.P. Mohapatra, J.

1. This revision is directed against the order passed by the Sub-divisional Magistrate, Jharsuguda, on 25. 3. 1981 refusing to cancel the preliminary order under Section 145(1) of the Code of Criminal Procedure (hereinafter referred to as the 'Code') under Sub-section (5) thereof. The petitioner is a member of the second party.

2. The opposite parties and the petitioner belong to village Rajpur within Jharsuguda Subdivision of Sambalpur district. Opposite parties 1 and 2 made an application before the Subdivisional Magistrate stating therein that they are in possession of a piece of homestead land in the village with an area of 36 feet x34 feet for move than ten years and had constructed a house thereon. The petitioner with other members of the second party without having any right, demolished the house on the aforesaid disputed land on 20. 2. 1981. Because of such action, there was apprehension of breach of peace and so they prayed for action under Section 144 of the Code. The Subdivisional Magistrate by order dated 24. 2.1981 directed the officer-in-charge of Brajarajnagar Police Station to hold an enquiry and submit his report. The said officer-in charge made an enquiry and submitted a report to the Court. He stated therein that the opposite parties claimed the disputed land which once belonged to one Chedilal of Belpahar. But they could not show any documentary evidence of acquisition. The petitioner on the other hand, claimed that Pitamber Pradhan, a member of the second party purchased the disputed land by a sale-deed from one Sambhunath Majumdar who had earlier acquired the same from one Chediprasad Shukla. He emphasised that both the parties, were enimical to each other and were aggressive. He recommended initiation of a proceeding under Section 145 of the Code.

3. On consideration of the police report the Subdivisional Magistrate found that there was apprehension of breach of peace in respect of the disputed land and so he passed the preliminary order under Section 145(1) of the Code on 3. 3. 1981 directing both the parties to Submit their statements in support of their respective claim of possession thereof.

4. The petitioner on appearance made a petition under Sub-section (5) of Section 145 of the Code stating therein that he along with others, who are members of the second party, has been in exclusive possession of the disputed land and so there was no apprehension of any breach of peace. Further the identity of the disputed land being not at all clear and specific, but on the other hand vague, the proceeding under Section 145 of the Code cannot continue according to law. Therefore, the preliminary order should be cancelled and the proceedings dropped. This petition was considered by the Subdivisional Magistrate and by the impugned order dated 25. 3.1981 he rejected the same.

5. Me. S. S. Basu, appearing for the petitioner, urged that the description and identity of the disputed land are so vague that the proceeding under Section 145 of the Code cannot continue in accordance with law. Therefore, it is a fit case in which the preliminary order should be cancelled and the proceedings dropped. He relied upon a decision reported in 1973 C. L. T. 469-Duryodhan Jena v. Dharamu Jena and Ors. Mr. J. K. Misra, appearing for the opposite parties on the other hand contended that both the parties are aware of the identity of the disputed land and as evidence has not so far been recorded in the proceeding, the stage for establishing the identity of the disputed land has not reached. Therefore, the preliminary order cannot be cancelled and the proceedings dropped.

6. It will appear from the petition made by opposite parties 1 and 2, the report of the officer-in-charge, Brajarajnagar Police Station, as well as, the preliminary order that the area of the disputed land and the nature thereof have been specified, although other descriptions, such as, plot number and boundaries have not been stated. The petition made by the petitioner and the other members of the second party under Section 145(5) of the Code shows that they are quite aware of the identity of the disputed land because, in para 1 thereof they have specifically stated that they are in physical possession of the homestead piece of land in their own right to the exclusion of the members of the first party. Thus from the materials available from record it is quite apparent that both the parties are aware of the identity of the disputed land. The above apart, the proceeding was at the initial stage when the petition under Section 145(5) was made for cancellation of preliminary order. The parties had not adduced evidence, both oral and documentary, in the course of which further identity of the disputed land by specifying plot number, boundaries and other particulars could be elucidated. A proceeding under Section 145 can be dropped by cancellation of the order passed under Sub-section(1) thereof if it is shown that no dispute exists or has existed so as to cause breach of the peace. In view of the report of the officer-in-charge of Brajarajnagar Police Station, it cannot be said that there was no apprehension for breach of the peace between the parties to the proceeding in respect of the disputed land. The case reported in 1973 C. L. T 469-Duryodhan Jena v. Dharamu Jena and Ors., and relied upon by Mr. Basu is distinguishable in so far as in that proceeding the parties thereto claimed portions out of the north and south of the plots without proper specification for proof of identity and the Court had- already concluded the proceeding and had directed delivery of possession. In such circumstances the learned Single Judge of this Court held that as the description of the property in possession of different persons was extremely vague, the Court should not have proceeded to decide the matter in the manner it did. Further, for the aforesaid reason the conclusion of the Court could not be properly implemented and could leave to confusion creating further difficulties between the parties. As already alluded to earlier, the facts of the present case are different, in so far as, the parties to the proceeding are quite aware of the identity of the disputed land and as rightly pointed out by Mr. Misra, the stage for proving further identity thereof had not reached. Therefore, I am unable to accept the contention raised by Mr. Basu.

7. Before parting with the case, I would like to observe that the proceeding under Section 144 was initiated in the Court below on 24. 2. 1981 and the preliminary order under Section 145(1) of the Code was passed on 3. 3. 1981. After this revision was filed, the further proceedings were stayed by order dated 23. 7. 1981. It is not known whether after lapse of more than three years the dispute between the parties still exists and there is still apprehension of breach of peace between them. May be, the parties in the meantime have decided to amicably settle the dispute between them in which case there may not be any further apprehension of breach of peace. Therefore, when the records of the case will go back to the Court below, it should take notice of these aspects and proceed in accordance with law.

8. For the foregoing reasons, I do not find any material to interfere with the impugned order. Therefore, the revision is dismissed subject to the observations made above.


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