Soda Soura and Another vs Syama Bisoi and Others

P.K. Tripathy, J.—In spite of issue of notice as per the order No. 7, dated 2.3.1998, the opposite party members have not appeared.

Learned counsel for the petitioners is present and ready to argue.

Heard.

The 2nd party members in Criminal Misc. Case No. 14 of 1997, a proceeding u/s 145, Cr.P.C. of the Court of Sub divisional Magistrate,

Nowrangpur (in short ''S.D.M.'') have preferred this revision against the order relating to passing of preliminary order u/s 145(1) Cr.P.C,

appointment of receiver for the standing crop and attachment of the disputed case land u/s 146(1), Cr.P.C. The disputed case land are some of the

plots out of Khata No. 174 in village Sagarmunda. Learned counsel for the petitioners argues that learned S.D.M. passed the aforesaid order

relying upon the report submitted by the A.S.I, of Police, Dongerbheja Out Post through the I.I.C., Nowrangpur Police-station and that in that

report the A.S.I, has clearly mentioned that the disputed case land was under the possession of the 2nd party members. He further argues that in

view of that learned S.D.M. should not have initiated the proceeding u/s 145(1) Cr.P.C. The aforesaid contention of the petitioners is not

sustainable inasmuch as in the said report, the A.S.I, of Police reiterated about the dispute between the parties relating to the claim of possession

and the apprehension of breach of peace arising due to such claim of the rival parties. It is the settled position of law that when there exists

apprehension of breach of peace concerning the claim of possession of land or water a Magistrate is competent enough to take recourse to action

u/s 145(1), Cr.P.C. In this case the subjective satisfaction of learned S.D.M. being not found to be illegal, the impugned preliminary order is not

liable to be disturbed. Accordingly, the 1st contention of the petitioners stands rejected.

Referring to the order of attachment and appointment of receiver, learned counsel for the petitioners argue that though in accordance with the

provision under Sub-sections (1) and (2) of Section 146, Cr.P.C. the S.D.M. was competent to attach the subject matter of dispute and to

appoint receiver but he could not have done so in the present case in the absence of a finding that it was a case of emergency or that learned

Magistrate was unable to decide which of the parties was in possession on the date of preliminary order. Accordingly, he prays to set aside the

order of attachment and appointment of receiver. It is true that in the case at hand, learned Magistrate after passing the preliminary order has not

recorded a finding that it was case of emergency so as to attach the disputed land. To that extent, the impugned, order appears to be incorrect.

However, when the police report indicated about dispute between the parties relating to growing up the crops, learned Magistrate when found

standing crop was there in the disputed case land, he was competent enough to pass an order for appointment of receiver with respect to the

standing crop in accordance with the provisions in Sub- section (8) of Section 145, Cr.P.C. Simply because learned Magistrate has not noted the

said provision in the impugned order, that does not render the order of appointment of receiver for the standing crop illegal or perverse. Similarly,

mentioning in order that receiver was appointed u/s 146(1), Cr.P.C, does not make that order illegal because of two factors viz., (i) that Sub-

section (1) of Section 146, Cr.P.C. does not provide for appointment of receiver and (ii) use of wrong nomenclature does not vitiate an order.

Therefore, in true sense the aforesaid order appointing receiver for the standing crop is an order under Sub-section (8) of Section 145, Cr.P.C.

and therefore, that order is not liable to be interfered with at this stage i.e., after lapse of three years.

In view of the aforesaid discussion and findings while setting aside the order of attachment under Sub-section (1) of Section 146, Cr.P.C, this

Court does not interfere with the preliminary order u/s 145(1), Cr.P.C and the order of appointment of receiver for the standing crop which was

passed in accordance with the provision u/s 145(8), Cr.P.C. At any stage of the proceeding u/s 145, Cr.P.C, if the Magistrate shall be satisfied

about existence of any of the appropriate grounds provided in Sub-section (1) of Section 146, Cr.P.C he may pass an appropriate order for

attachment. At that stage, learned Magistrate shall do well to apply his mind to the facts and provisions of law and to pass appropriate order either

suo motu or on the application of the either of the parties but after affording an opportunity of hearing to both the parties.

The Criminal Revision is accordingly allowed in part.