Kuber Padhan vs Chaturbhuja Kuar and Others

B.N. Misra, J.—This reference has been made by the learned Sessions Judge, Bolangir Kalahandi recommending the quashing of an order made by a learned Magistrate by which he dropped the proceeding u/s 145, Criminal P.C. without giving a positive finding that there was no further apprehension of the breach of the peace. The recommendation of the learned Sessions Judge is that the said order should be vacated and the learned Magistrate should be called upon to dispose of the proceeding in accordance with law.

The learned Sessions Judge in his order of reference has referred to several cases. The impugned order of the learned Magistrate goes to show that he had already drawn up a preliminary order u/s 145, Criminal P. C. having been satisfied that there existed apprehension of the breach of the peace. An application was made on behalf of the second party to the effect that the said proceeding should be dropped on account of two facts, firstly that thorn was already a determination in 1958 in an O. T. R. case regarding possession of the property, and secondly that a proceeding u/s 26 (2) of the Orissa Land Reforms Act was pending. This application of the members of the second party prevailed with the learned Magistrate and he came to hold that interim relief was available from the revenue officer in the pending O. L. R. proceeding and he, therefore, dropped the proceeding and directed the land to be released from attachment.

It has now been settled on good authority that mere institution of a civil suit or a revenue proceeding the ultimate decision of which may be taken to be from a competent court does not take away the jurisdiction of a learned Magistrate to institute a proceeding u/s 146, Criminal P. C. The purpose for which provision for such a proceeding has been made in the Code of Criminal Procedure is well known. It is essentially to avoid the breach of the peace and, therefore, mere pendency of a suit or a revenue proceeding cannot be a substitute relief for such a proceeding In the circumstances, unless there is an interim arrangement made by the civil or the revenue court in the matter of possession by injunction or receiver the apprehension continues and notwithstanding the pendency of a civil suit or a revenue proceeding a Magistrate has jurisdiction to continue the proceeding u/s 145, Criminal P. C.

Besides the O. L. R. Court in a proceeding u/s 26 (2) of the Act can neither appoint a receiver nor make an interlocutory order for any other arrangement. This is a case where the O. T. R. decision is about 10 years old. It is true that the criminal courts are to work in aid of civil court decisions, and decrees of civil courts must always be honoured.

But having examined some of the case. I find that where High Courts have decided that Criminal Courts must work following the decrees of the civil courts, the cases are of recent decrees. For instance, in Mahabir Singh and Others Vs. Emperor, the decree was only a few days old, in Jang Bahadur Singh Vs. Nazimul Haque and Others, , the decree was about two months old, in Banamali Mohapatra Vs. Bajra Nahak and Others, , the civil Court''s decision was a year old, while in XXXIV (1968) CLT 655 Muralidhar Nails v. Ghatrubhuja, Padhan the decree was a year and 3 months old. In the cases where the determination of a competent court is at a distant point of time the need for re-examining the claim for possession does arise. In the circumstances, I in agreement with the learned Sessions Judge would accept the reference. The result would be that the order of the learned Magistrate dropping the proceeding stands vacated and he will be called upon to decide the case in accordance with law.