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2000 DIGILAW 181 (ORI)

Soda Soura v. Syama Bisoi

2000-03-28

P.K.TRIPATHY

body2000
ORDER 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. 2. Heard. 3. The 2nd party members in Criminal Misc. Case No. 14 of 1997, a proceeding under Section 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 under Section 145, (1) Cr.P.C., appointment of receiver for the standing crop and attachment of the disputed case land under Section 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 pro¬ceeding under Section 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 apprehen¬sion 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 posses¬sion of land or water a Magistrate is competent enough to take recourse to action under Section 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. 4. Accordingly, the 1st contention of the petitioners stands rejected. 4. 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 sub¬ject 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 under Section 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. 5. 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. 5. 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 under Section 145(1), Cr.P.C and the order of appointment of receiver for the standing crop which was passed in accordance with the provision under section 145(8), Cr.P.C. At any stage of the proceeding under Section 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. Revision allowed in part.