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2002 DIGILAW 507 (ORI)

RABI CHANDRA BEHERA v. SAMPURNA BEHERA

2002-08-09

P.K.TRIPATHY

body2002
JUDGMENT : P.K. Tripathy, J. - Heard. 2. Both the applications u/s 482, Cr.P.C. arise between the same parties relating to two proceedings u/s 145, Cr.P.C. of the Court of Executive Magistrate, Titilagarh vide Criminal Misc. Case Nos. 91 and 92 of 1981. Since common legal issue is involved in both the cases, on the request of the parties common argument is heard and both the cases are disposed of by this common judgment. 3. It may be a case of rare instance where a triffle litigation u/s 145, Cr.P.C. for small patches of land is being fought by the parties for long 22 years and yet they have not lost the stamina to run from pillar to post by knocking the doors of justice at every forum to keep the proceeding linger. A litigation of this nature should not always be dealt with on mere technicalities of law but Courts have to adopt pragmatic approach to put an end to the lingering process with that view and purpose the technical point raised by the second-party / petitioner is set at naught inasmuch as according to him both the proceedings were initiated u/s 144, Cr.P.C. and on the application dated 19.12.1981 of the second party, they were converted to proceedings u/s 145, Cr.P.C. on 10.5.1982. After lapse of 20 years now petitioner raises the issue that the order of converting the proceeding is illegal because such order was passed after expiry of two months of expiry of the prohibitory order u/s 144(1), Cr.P.C. Such issue was raised by the petitioner while moving an application u/s 145(5), Cr.P.C. to drop the proceeding on the ground of non-existence of breach of peace. That issue was disputed and contested by the 1 st party members. That circumstance alone is sufficient to indicate that there still exists apprehension of breach of peace between the parties concerning possession of the disputed case land. 4. Learned Executive Magistrate on due appreciation of that circumstance while rejecting the application filed by the petitioner also on the application of the opposite party passed order for clubbing both the proceedings u/s 145, Cr.P.C. between the self- same parties to be disposed of by a common enquiry. Petitioner challenged that order in the revisional Court and learned Addl. Sessions Judge, Titilagarh vide the impugned judgment dated 27.4.2001 in Criminal Revision Nos. Petitioner challenged that order in the revisional Court and learned Addl. Sessions Judge, Titilagarh vide the impugned judgment dated 27.4.2001 in Criminal Revision Nos. 10 and 11 of 1999 dismissed the revisions upholding the view of the Executive Magistrate. This Court finds that the approach of the learned Executive Magistrate so also learned Additional Sessions Judge are neither illegal, unjust, or improper. Therefore, the provision u/s 397(3), Cr.P.C., does not permit the petitioner to move a second revision by describing that to be an application u/s 482, Cr.P.C. 5. Be that as it may, the point which the petitioner raises about illegality in the order in converting the proceeding from one u/s 144, Cr.P.C., to that of the proceeding u/s 145, Cr.P.C. is not out and out an improper contention. But since the petitioner did not raise such a legal issue for long 20 years and besides that when the petitioner as the second party has filed written statement, contesting to the claim of possession under ? Section 145, Cr.P.C. and the proceeding is continuing all throughout, u/s 145, Cr.P.C., therefore, equity does not demand quashing of the proceeding u/s 145, Cr.P.C. only because of that legal lacuna. It is true that converting a proceeding after expiry of a period of two months is legally not permissible but when it is the admitted position on record that a dispute concerning possession of land exists between the parties and there is likelihood of apprehension of breach of peace, because of such dispute between the parties, which may affect the public tranquility, therefore, the proceeding u/s 145, Cr.P.C. should come to its logical end as per the provision of law in that Section. For that reason alone, petitioner's contention is not acceptable when he complains of delayed conversion of the proceeding. 6. Learned Addl. Sessions Judge in the impugned judgment has recorded that plot No. 739 measuring an area Ac. 0.95 decimals is the subject matter of dispute in Criminal Misc. Case No. 91 of 1981 whereas Plot No. 739/1130 measuring an area Ac. 0.95 decimals is the subject matter of dispute in Criminal Misc. Case No. 92 of 1981. Both the aforesaid patches of land apertains to Khata No. 147/2. 0.95 decimals is the subject matter of dispute in Criminal Misc. Case No. 91 of 1981 whereas Plot No. 739/1130 measuring an area Ac. 0.95 decimals is the subject matter of dispute in Criminal Misc. Case No. 92 of 1981. Both the aforesaid patches of land apertains to Khata No. 147/2. Such fact has also been stated in paragraph 2 of the application u/s 482, Cr.P.C. Therefore, this Court finds no illegality or unreasonableness in the impugned order of learned Magistrate for clubbing both the proceedings for a joint enquiry and analogous disposal. That procedure shall help the parties to minimise their time and expenditure in fighting the litigations by examining witnesses twice relating to the factum of possession. Apart from that the procedure suggested by the Magistrate will also tend to minimise the labour for effective and proper adjudication of the dispute. Under Such circumstance, petitioner should realise that the order is to his benefit and not to his detriment, when he is mentally prepared to fight the litigation u/s 145, Cr.P.C. 7. For the reasons indicated above, this Court finds no merit in the applications u/s 482, Cr.P.C. and dismisses the same. But keeping in view the long pendency of the proceeding u/s 145, Cr.P.C. This Court issues a direction to learned Executive Magistrate, Titilagarh to dispose of the proceedings u/s 145, Cr.P.C. by resorting to day-to-day enquiry and to complete it within two months from the date of receipt of a copy of this order. In that respect, learned counsel for the petitioner states that examination of alt his witnesses will be over within a period of four weeks. In other words, he requires altogether four weeks time for examination of all his witnesses. The 1st party / opposite party also expresses that such a period is required for examination of alt his witnesses. Therefore, in all, eight weeks at the maximum will be required for examination of all the witnesses. Under such circumstances, there shall be no difficulty for learned Executive Magistrate to complete the enquiry within two months from the date of receipt of a copy of this order. All that he is to do is to avoid granting of liberal as well as long adjournments to either of the parties. Under such circumstances, there shall be no difficulty for learned Executive Magistrate to complete the enquiry within two months from the date of receipt of a copy of this order. All that he is to do is to avoid granting of liberal as well as long adjournments to either of the parties. Learned counsel for the 1st party / opposite party undertakes to produce a certified copy of this judgment in the Court of Executive Magistrate, Titilagarh by 2nd September, 2002. Both the parties are directed to appear in that Court on that date as well. They shall not be entitled to fresh or further notice from that Court and default in appearance by any or both the parties be treated as such. On 2.9.2002, learned Executive Magistrate shall fix a date of hearing and thereafter proceed with the enquiry and complete it within two months as directed.