Bhubaneswar Dharua and Another vs Kaibalya Mare and Others

P.K. Tripathy, J.—Heard learned Counsel for the Petitioners. None appears for the opposite parties in spite of notice.

The 1st party in criminal Misc. Case No. 139 of 1985 of the Court of Executive Magistrate, Sambalpur have preferred this revision challenging the judgment dated 1.2.1996 of the Additional Sessions Judge, Sambalpur passed in Criminal Revision No. 56/3 of 1994-95. The aforesaid case was a proceeding u/s 145. Code of Criminal Procedure on 8.6.94 learned Executive Magistrate passed the final order declaring possession of the 1 st party over the disputed case land measuring an area of Ac. 4.32 decimals in eight plots under M.S. Khata No. 247 of village Lapanga under Katarbaga police-station in the district of Sambalpur. The 2nd party/opposite party challenged that order in the court of sessions and learned Additional Sessions Judge while upholding possession of the 1st party quashed the order of learned Executive magistrate on the ground that in evidence 1st party made a statement stating about no apprehension of breach of peace and therefore learned Executive Magistrate, in view of the ratio in the case of Sarapalla Kamaya and Ors. v. Bamidi Rajanna and Ors. 1989 (II) OLR 398 was without jurisdiction to decide the factum of possession. Thus, the 1 st party members have preferred the present revision challenging that judgment of learned Additional Sessions Judge, Sambalpur.

In the case of S. Kamaya (Supra) in a different context i.e. relating to an order u/s 146, Code of Criminal Procedure, on the basis of spot visit made by the Executive Magistrate, this Court observed that in the absence of apprehensions of breach of peace and simply from the knowledge derived from the spot visit, learned Executive Magistrate could not have passed the order of attachment and learned sessions Judge should not have approved that order. The aforesaid ratio is hardly applicable to the facts and circumstances of the present case. As rightly contended by the learned Counsel for the Petitioner misreading a sentence from the evidence of the 1st party, learned Additional Sessions Judge passed the aforesaid order whimsically in setting aside the order of the learned Executive Magistrate. On perusal of the evidence of the said witness, this Court finds that in the examination-in-Chief, he has stated about the 2nd party members coming to the spot being armed with lathies so as to create dispute giving rise to apprehension of breach of peace. Apart from that, at the stage of initiation of proceeding u/s 145, Code of Criminal Procedure, learned Magistrate was satisfied about, existence of breach of peace and that finding was not at all disputed or challenged by the 2nd party members at any stage of the proceeding. Therefore, learned Additional Sessions Judge was wrong in disposing of the revision in the aforesaid manner. Since he has not considered the matter on merit, while setting aside the impugned judgment dated 1.6.96 the matter is remitted back to him with a direction to hear and dispose of the same within a period of two months from the date of receipt of the L.C.R., Since the 1 st party members is present and aware of this remand order, he need not be noticed. He shall appear before the Additional Sessions Judge OD 24 th April, 2000, to obtain intimation relating to the date fixed and thereafter to participate. Soon after receipt of the L.C.R. with a copy of this order, learned Additional Sessions Judge shall do well to issue notice to the 2nd party/petitioners, if necessary, in both the ways. After receipt of the service return whether or not either or both parties participate or not in the hearing, he shall dispose of the revision in accordance with law. If both or either of the parties will appear and desire to argue, learned Additional Sessions Judge shall afford an opportunity of hearing.

In the result the criminal Revision is allowed and the Criminal Revision No. 56/3 of 1994-95 is remanded to the Court of 1st Additional session Judge, Sambalpur to hear and dispose of in the manner indicated above.