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Kolha Jena Vs. Pravakar Patra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in58(1984)CLT115; 1985CriLJ1837
AppellantKolha Jena
RespondentPravakar Patra and anr.
Cases Referred(Kasabananda Das v. Rama Behera
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction 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. - this order of the court was promulgated in presence of the petitioner as well as opposite party no......nilakantha patra, banabihari patra, prafulla patra, satakrishna patra, the sons of prabhakar patra (opposite party no. 1), two rent receipts in the names of jalandhar patra and others and a report dated 14-7-80 of the amin in mutation case no. 627/80 stating that at the time of local inspection it was found that the sons of prabhakar patra are in possession of lands in question.2. the learned counsel for the petitioner challenges the impugned order mainly on the ground that the trial court erred in disposing of the proceeding without requiring opposite party no. 1 to adduce any oral evidence. he has further submitted that the documents produced by the first party having not been proved by adducing any evidence and having not been marked as exhibits, should not have been relied upon.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. The order of the Sub-Divisional Magistrate, Anandapur in a' proceeding under Section 145, Criminal P.C. declaring possession in favour of opposite party; No. 1 the first party, is impugned in this revision' petition. The petitioner was one of the members of the second party in the said proceeding.

On a petition filed by opposite party No. 1, the learned Magistrate passed an order under Section 145(1) on 17-11-1980 and called upon the parties to file written statements and documents, if any, and appear before him on 17-12-80 for hearing. By the same order he attached the crop standing on the disputed; land under Section 145(b), Cr. P.C. and appointed the R.I. as Receiver for harvesting the crops. This order of the Court was promulgated in presence of the petitioner as well as opposite party No. 2, on 17-11-80 as reported by the A.S.I., Ramachandrapur P.S. The Revenue Inspector, Khaliamenta who was appointed us the Receiver harvested the crop from the disputed land on 3-12-1980. The opposite party No. 1 filed his written statements and documents on 17-12-80. The order order-sheet of the trial Court reveals that though the case was posted on several dates i.e. 17-12-80,17-1-81, 21-2-81 and 18-3-81 before it was finally disposed of on 25-3-81, the members of the second party took no steps to either file their written statements or documents after appearing through a counsel on 2-12-81. The learned Magistrate on a perusal of the written statement and the documents produced by him, declared the opposite party No. 1 (First party) to be in possession of the disputed land by the impugned orders.

The documents filed by opposite party No. 1 are the order of Tahasildar in mutation case No. 627/80 dated 25-11-80 recording the properties including the disputed properties in the names of Jaladhar Patra, Nilakantha Patra, Banabihari Patra, Prafulla Patra, Satakrishna Patra, the sons of Prabhakar Patra (opposite party No. 1), two rent receipts in the names of Jalandhar Patra and others and a report dated 14-7-80 of the Amin in mutation case No. 627/80 stating that at the time of local inspection it was found that the sons of Prabhakar Patra are in possession of lands in question.

2. The learned Counsel for the petitioner challenges the impugned order mainly on the ground that the trial Court erred in disposing of the proceeding without requiring opposite party No. 1 to adduce any oral evidence. He has further submitted that the documents produced by the first party having not been proved by adducing any evidence and having not been marked as exhibits, should not have been relied upon by the Court below and the proceeding is vitiated on this ground.

3. The procedure to be adopted in an enquiry under Section 145, Criminal P.C. is prescribed by the Section itself. Sub-section (4) and Sub-section (9) of Section 145, Criminal P.C. lay down the procedure to be followed by the Magistrate. The said provisions are quoted hereunder:

(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the subject of disputes.

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under Sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub-section (1).

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this Section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

From the aforesaid provisions it is clear that the Magistrate is to peruse the statements put in by the parties, hear the parties and receive all such evidence as may be produced by them and take such further evidence, if any, as he thinks necessary, before taking a decision as to which of the parties was in possession of the subject matter of dispute on the date of the order under Section 145(1), Criminal P.C. Sub-section (9) of Section 145, Criminal Procedure Code gives the discretion to the Magistrate to issue summons to any witness directing him to attend or to produce any document or thing at any stage of the proceedings on the application of either party. Recording oral evidence is not compulsory if none of the parties desire to produce such evidence and if the Magistrate does not feel the necessity for the same. The nature of the enquiry under Section 145, Criminal P.C. being a short and summary one, it is quite possible that the Magistrate in a particular case may feel that the case can be disposed of on perusal of the documents without examining any witness. As such no fault can be found with the Court below for disposing of the proceeding relying solely on the documentary evidence and the contention of the learned Counsel is devoid of merit.

Coming to the submission of the learned Counsel for the petitioner that the documents filed by opposite party No. 1 should have been proved by adducing oral evidence before being marked as exhibits and in the absence of such procedure no reliance could be placed on the said documents, the submission is without substance. It has been held in several decisions by this Court (1967) 33 Cut LT 1098 (Gopi Harachandan v. Rama Krishna Paltasingh) and (1968) 34 Cut LT 522 (Kasabananda Das v. Rama Behera), that there is no necessity to adduce evidence by way of proving private documents. The documents filed by the parties are to be taken into consideration and that can be done even without formal proof. Marking of documents as exhibits is necessary for identification and it is not a mandatory condition precedent before reliance can be placed on the same.

4. In view of the above analysis, there is no merit in the revision which is accordingly dismissed.


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