Swarup Kumar Sundara vs State of Orissa and Others

P.K. Tripathy, J.—Heard.

In this revision application Petitioner has approached this Court challenging the order dated 16.1.1995 and consequently the order 4 dated 5.9.1994, passed by learned Executive Magistrate, Ranpur in Criminal Misc. Case No. 9 of 1994, a proceeding which is presently continuing u/s 145 Code of Criminal Procedure, The 2nd party No. 1 are respectively the opposite parties 2 and 3 in this revision.

A brief narration of the fact will clarify the position to appreciate the contentions of the parties.

On the basis of an application filed u/s 144 Code of Criminal Procedure, on 6.7.1994, learned Executive Magistrate initiated the proceeding and issued prohibitory order restraining the 2nd party members. After appearance of the 2nd party members on 1.9.94 the first party prayed to convert the proceeding to one u/s 145 Code of Criminal Procedure to adjudicate the disputed claim of possession asserted by the parties. On 5.9.94, he passed order converting the proceeding to one u/s 145 Code of Criminal Procedure After passing that order, later, on that day he passed the following order:

It is ascertained that there is apprehension of breach of peace over the disputed land. So both the parties are restrained not to enter the land until further order.

Petitioner approached this Court in challenging that order vide criminal Revision No. 648 of 1994. On 21.11.94, this Court disposed of that revision with observations that:

Heard: The main grievance in this revision application is that the proceeding u/s 145 of the Code of Criminal Procedure, 1973 (in short, the ''Code'') as converted by the learned Executive Magistrate, Ranpur, in Criminal Misc. Case No. 9 of 1994 is not in accordance with law and continuance thereof is not in the interest of justice. It is open to the Petitioner to move the Executive Magistrate, ranpur for consideration of this aspect.

The Criminal Revision is disposed of.

Thereafter, when the Petitioner moved an application on 16.1.95, learned Executive Magistrate passed the impugned order. The operative portion of the said order reads as hereunder:

The prayer of the learned Advocate is to drop the proceeding and to maintain the status quo in question. The prayer is rejected. The order passed on 5.9.94 stands. Put up on 28.1.95.

In substance the case of the Petitioner is that the 2nd party No. 1 being the lease holder of the property transferred the same in his favour through an unregistered deed and he claims possession through that document. The case of the 1 st party is that the 2nd party No. 1 transferred the case land to him under a registered sale deed and he is in possession from the date he purchased same. Both the parties have filed their respective statements and documents in support of their rival claim of possession.

Learned Counsel for the Petitioner states- that he never moved for dropping the proceeding but prayed to recall the prohibitory order (as quoted above). He further argues that a prohibitory order cannot be passed along with or simultaneously with a preliminary order u/s 145 Code of Criminal Procedure, and therefore, the impugned order is bad in law and is liable to be set aside. Learned Counsel appearing for the 1st party opposite party No. 2 while not disputing to the correct position of law and incorrectness of the aforesaid prohibitory order argues that the Magistrate perhaps wanted to pass an order u/s 146, Code of Criminal Procedure to prevent the serious apprehension of breach of peace i.e., a case of emergency but worded the order incorrectly. This Court is unable to comprehend that learned Executive Magistrate was unable to express his view correctly so that he passed a wrong order in the aforesaid manner. 6. Be that as it may, this Court finds that learned Magistrate was wrong in passing the impugned prohibitory order while rightly converting the proceeding to one u/s 145, Code of Criminal Procedure A prohibitory order along with a preliminary order u/s 145 Code of Criminal Procedure is both factually and legally not required to be passed. At the time of taking action u/s 145 (I) Code of Criminal Procedure, if at all he found the circumstances to be one of emergency that parties should be restrained from entering into the case land, he could have passed an order u/s 146, Code of Criminal Procedure, for attachment and if necessary would have appointed a receiver to take care of the property until disposal of the proceeding u/s 145, Code of Criminal Procedure Learned Counsel for the first party at this stage states that the prohibitory order be allowed to continue until an order u/s 146 (I) is passed by the learned Magistrate.- The aforesaid request of the 1 st party cannot be accepted because a prohibitory order at the first instance should not and could not have been passed and apart from that it has so far wrongly continued for a period of five years as against the principle of law and the positive statutory provisions.

Therefore, while setting aside the impugned prohibitory order from the order dated 5.9.94, and simultaneously, the impugned order dated 16.1.95 for not properly considering the submissions of the 2nd party, this Court directs that if an application u/s 146, Code of Criminal Procedure, shall be filed, it is open to the learned Executive magistrate to consider it in accordance with law and to pass appropriate order. For the sake of clarification it is proper to indicate here that the aforesaid observation need not be regarded as a direction either to allow or reject the application u/s 146, Code of Criminal Procedure if moved by either of the parties, shall be considered by the Magistrate strictly in accordance with law and to pass appropriate order in that regard.

The Criminal Revision is allowed.