Harekrushna Patra and Others vs Choudhury Ramasankar Das and Others

S. Acharya, J.—The Petitioners were second party members in a proceeding u/s 145 of the Code of Criminal Procedure.

The said proceeding was initiated on the report of the Officer-in-charge of Balipatna P.S. dated 17-11-1976 forwarded by the Superintendent of Police to the Court on 22-11- 1976. The preliminary order in the proceeding was passed on 29-11-1976. In that order the date of appearance of both the parties was left blank. In the lower Court records there is nothing to show that the said Older was actually issued and served on any of the parties at any time. By that order the Court directed attachment of the standing crops on the disputed land. This order was passed in pursuance of Sub-section (8) of Section 145, Code of Criminal Procedure as specifically mentioned in the said order. There is nothing on record to show that the said order of attachment was even served on the concerned persons or that it was acted upon. The learned Magistrate in his order dated 27-4-1977 specifically states that the "attachment order signed on 29-11-1976 was never issued and therefore never served on the concerned parties." The order dated 1-12-1976 passed by the S.D.M., Bhubaneswar in the said proceeding shows that on that date the parties were heard on the petition filed by the members of the second party u/s 145(5), Code of Criminal Procedure and after such hearing the case was adjourned to 2-12-1976 for orders on the said petition u/s 145(5). On 2-12-1976 the proceeding u/s 145 was finally disposed of, though there is nothing on record to show that the main petition was ever heard on merits as required under the law. By that order dated 2-12-1976 the Magistrate held that the second party was in possession of the disputed land prior to the institution of the present proceeding and that the first party failed to prove his possession over the suit land. In the said order the Magistrate did not find that no dispute likely to cause a breach of the peace relating to the possession of the subject of dispute existed any further, on which finding only that proceeding could have been terminated u/s 145(5). Rather he recorded a finding that there was still apprehension of breach of peace between the parties, and on that finding and his aforesaid finding of possession in favour of the 2nd party he "rescinded and converted" the proceeding u/s 145, Code of Criminal Procedure into a proceeding u/s 107. Code of Criminal Procedure and passed orders in that direction on that date and on the subsequent dates. Against that order the first party went up in revision before the Sessions Judge, Puri. The Sessions Judge in the operative portion of the impugned order dated 14-4-1977 has stated as follows:

The revision is allowed. The attachment of the disputed land should continue under Sub-section (1) of Section 146 of the Code of Criminal Procedure until the competent Court decides the rights of the parties regarding the possession of the disputed land.

The second party has preferred this revision against the Order dated 14-4-1977 of the Sessions Judge.

On hearing the learned Counsel appearing for both the parties and on a careful perusal of the records of the Court below and the original Court I am convinced that the matter has been dealt with in a very careless and perfunctory manner by both the Courts below. There is nothing on record to show that the disputed land was ever attached in the said proceeding. Order for attachment only of the standing crops on the disputed land was passed in the preliminary order. That attachment was under the provisions of Sub-section (8) of Section 145, Code of Criminal Procedure as specifically stated in the preliminary order. Under Sub-section (8) of Section 145, Code of Criminal Procedure a magistrate has the power to pass an order for the proper custody or sale of any crop or other produce of the property in question. Attachment u/s 145(8), Code of Criminal Procedure is directed in order to prevent damage or decay of the crop or produce of the property, and such attachment is not an attachment of the subject of dispute. That order is passed in course of the proceeding u/s 145, Code of Criminal Procedure itself. So such an order cannot put an end to that proceeding, whereas an attachment of the �subject of dispute� itself is done by an order u/s 145(1), Code of Criminal Procedure, and such an attachment puts an end to the 145 proceeding - Sashidhar Naik and Ors. v. Gadadhar Patel and Ors. 43 (1977) C.L.T. 364 and Bisweswar Pattnaik Vs. Rahas Bihari Naik, . So the Sessions Judge is wrong when he states in the impugned order that " The standing crop goes with the land. So when the standing crop was attached u/s 146(1), Code of Criminal Procedure on the fact that the case was of emergency, the learned S. D. M. should not have decided the possession of any of the parties in the disputed land and he should have left the matter for the decision of a competent Court regarding the rights of the party to possess the land in question." Moreover, the order of attachment of the crop was also never issued or acted upon. So, in any view of the matter, the direction of the Sessions Judge that the attachment of the disputed land� would continue under Sub-section (1) of Section 146, Code of Criminal Procedure until a competent Court decides the rights of the parties to possess the disputed land is entirely illegal and misconceived.

From the trial Court records (M s. Case No. 43/76) it appears that on the day (29-11-1976) the preliminary order in the proceeding u/s 145, Code of Criminal Procedure was recorded, the second party members filed the petition u/s 145(5), Code of Criminal Procedure in that Court. That petition was taken up for hearing on 1-12-1976. There is nothing on record to indicate that the first party members had previous notice of the said petition. However, the Magistrate in his order dated 1-12-1976 states that the said petition was heard in the presence of the parties and their advocates, and the case was adjourned to 2-12-1976 for orders on that petition u/s 145(5). On 2-12-1976 the Magistrate passed his above-mentioned order holding that the second party was in possession of the disputed land. There is nothing on record to show that by 1-12-1976 when the petition u/s 145(5) was heard, the parties had filed their written statements in support of their respective claims of possession of the subject of dispute. As stated earlier, the preliminary order did not fix any specified date for the appearance of the parties or for filing their written statements and documents in that proceeding. Written statements or documents of the parties are not on record and there is nothing to show that the first party declined to file their written statements or documents. Moreover, it appears improbable that the parties on receiving notice of the preliminary order dated 29-11-1976 come ready for a full dress hearing of the matter on 1-12-1976. The order dated 1-12-1976 clearly shows that the Magistrate on that date heard the lawyers of the parties on the petition u/s 145(5) only, and without adverting to the provisions of Section 145, Code of Criminal Procedure and the procedure to be followed in such a proceeding disposed of this proceeding on 2-12-1976 in the manner aforesaid. Accordingly that order of the Magistrate also is illegal. This aspect of the question was not taken note of by the Sessions Judge.

On the above considerations the order passed by the Sessions Judge and that of the S.D.M., Bhubaneswar cannot be maintained and are accordingly set aside. As the proceeding u/s 145, Code of Criminal Procedure has not been legally disposed of, the Magistrate must proceed with the said proceeding and decide the matter in accordance with law and as provided u/s 145, Code of Criminal Procedure. The proceedings should be disposed of finally within four months from to-day with intimation to this Court.

The revision is allowed.

The L.C.R. be sent back immediately.

Revision allowed.