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2005 DIGILAW 422 (ORI)

Sudhakar Rout v. Upendranath Samal

2005-07-13

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. : This case arises out of a petition filed under Section 482 Cr.P.C. on behalf of the petitioners challenging the order dated 26.3.2001 passed by the Addl.Sessions Judge, Rourkela in Criminal Revision No.17 of 1997 confirming the order dated 18.10.1997 passed by the Executive Magistrate, Panposh in Criminal Misc. Case No.48 1997. 2. The facts germane to filing of the case succinctly stated are that the I.I.C. of Raghunathpali P.S. filed P.R. and counter P.R. under Section 107 Cr.P.C. against the petitioners and opp.parties before the S.D.M., Panposh, Rourkela which were registered as Criminal Misc. case Nos.748 and 749 of 1997 respec¬tively. Both the cases were transferred to the Court of Sri B. Lenka, Executive Magistrate, Panposh for hearing and disposal as per law. Accordingly, the Executive Magistrate proceeded with the cases. He clubbed both the cases, but passed the final order only on Criminal Misc. Case No.748 of 1997 wherein the petitioners were the First Party and opp.parties were Second Party. 3. The case of the First Party before the Executive Magis¬trate is that Sudhakar Rout, First party No.1 was allotted with shop No.1 in Block No.III of Janata Bipani Market, S.T.I. Chowk, Rourkela-4 by RRIT, Rourkela vide letter No.1331 dated 2.4.1996 where he installed a Atta Chaki. First party Nos.2 and 3 are sons of Sukhakar Rout. The second party No.1 was appointed as Munsi by the first party members to maintain books of account and to look after the business. Taking advantage of his position, he managed to manufacture certain documents and claimed to be the owner of the aforesaid shop room. When the first party members knew it, they removed him immediately. But surprisingly he managed to obtain an ex parte prohibitory order under Section 144 Cr.P.C. prohibiting the First party members from entering upon the dis¬puted shop room in Crl. Misc. Case No.597/97. After hearing both the parties, the Executive Magistrate vacated the prohibitory order. On the other hand it is the case of the second party members that they are owner of the shop room. The first party No.1 relin¬quished his right over the same in their favour through a deed of relinquishment. 4. Misc. Case No.597/97. After hearing both the parties, the Executive Magistrate vacated the prohibitory order. On the other hand it is the case of the second party members that they are owner of the shop room. The first party No.1 relin¬quished his right over the same in their favour through a deed of relinquishment. 4. Both the parties claimed to be the owner of the disput¬ed shop room and as there was apprehension of breach of peace, the OIC of Raghunathpali Police station submitted P.R. and coun¬ter P.R. against both the parties under Section 107 Cr.P.C. as stated earlier and put the shop room under lock and key. 5. The Executive Magistrate called for a report with regard to apprehension of breach of peace from the I.I.C. of Raghunathpali P.S., but no report was submitted. The I.I.C. also did not attend the Court despite notice so also the witnesses. Accordingly the Executive Magistrate dropped the proceeding in absence of sufficient evidence with regard to apprehension of breach of peace. In the P.R. and counter P.R. the I.I.C. had stated that the Second party members were looking after their business in the disputed shop room on the strength of an agree¬ment. On the basis of this, the Executive Magistrate held that the Second party members were in possession of the shop in ques¬tion by the time it was locked. Accordingly he directed the I.I.C. of Raghunathpali P.S. to unlock the shop in favour of the Second party members (Upendranath Samal and others). 6. Aggrieved with this order, the first party members preferred revision against it before the Addl.Sessions Judge, Rourkela. Since neither of the parties was found present on the date of hearing, the Addl. Sessions Judge perused the case record and dismissed the revision vide order dead 24.3.2001. The present Criminal Misc. case has been filed challenging the orders of the Executive Magistrate and the Addl. Sessions Judge, Rourkela. 7. Learned counsel appearing for the First Party-petitioners submitted that the Executive Magistrate has no power under Section 107 Cr.P.C. to declare right, title, interest and possession over the disputed land. But in the present case the Executive Magistrate directed the I.I.C. of Raghunathpali Police Station to unlock the shop room in favour of the second party members-opp. parties, which is against law. The Addl. But in the present case the Executive Magistrate directed the I.I.C. of Raghunathpali Police Station to unlock the shop room in favour of the second party members-opp. parties, which is against law. The Addl. Sessions Judge, Rourkela without properly scrutinizing the materials on record confirmed the order of the Executive Magistrate. So both the orders should be set aside. No doubt Section 107 Cr.P.C. is a preventive Section. Right, title, interest and possession of any land or building cannot be declared under this provision. But in the present case as stated earlier apprehending breach of peace with regard to the possession of the shop room in question, the I.I.C. of Raghunathpali put the shop under lock and key and submitted P.R. and counter P.R. against both the parties. So after the proceeding under Section 107 Cr.P.C. was dropped it was the duty of the Executive Magistrate to pass necessary order for unlocking the room and giving the same to the party in pos¬session of it at the time of submission of the P.R. and counter P.R. As per the report of the police, the Second party members-opp.parties were looking after their business in the shop room by the time the P.R. and counter P.R. were submitted. So the order passed by the Executive Magistrate was rightly confirmed by the Revisional Court. Therefore, under such premises I do not find any ground to interfere with the order of the Executive Magistrate and the Revisional Court by exercising inherent power under Section 482 of Cr.P.C. Accordingly, the CRLMC stands dismissed. CRLMC dismissed.