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2010 DIGILAW 74 (ORI)

Banambar Das v. Pitambar Das

2010-02-05

S.K.MISHRA

body2010
JUDGMENT S.K. MISHRA, J. — The second party members in Criminal Misc. Case No. 155 of 2008 of the court of the Executive Magis¬trate, Kendrapara assails the order dated 16.12.2008, wherein the learned Executive Magistrate attached the lands in question and appointed Revenue Inspector, Baro Circle as the receiver. 2. The opposite parties in this Revision filed an applica¬tion under Section 145 of the Code of Criminal Procedure, 1973, hereinafter referred to as “the Code” for brevity, before the learned Executive Magistrate, Kendrapara arraying the present petitioner and others as second party members. They further prayed to restrain the second party members from interfering with their peaceful possession of the case lands. On perusal of the petition filed by the present opposite party no.1. the learned Magistrate passed an order directing the local police to submit the report and both the parties were restrained to come up on the case land. The case was posted to 18.12.2008 for further hearing. Pursuant to the notice issued by the Court on 8.12.2008, the present petitioner entered appearance and filed his counter. While the matter stood thus, on 10.12.2008, the first party filed a petition with prayer to appoint Revenue In¬spector, Baro Circle as receiver in respect of the case land with a direction to cut and harvest the paddy crops standing over the case land and to submit a report before the trial Court. He did not serve a copy of the petition dated 10.12.2008 to the present petitioner. Accordingly, without giving any reasonable opportunity to be heard, the orders were passed on 16.11.2008 and Revenue Inspector, Baro Circle was appointed as receiver in respect of the case land. The petitioner thus assails the order passed on 16.12.2008, wherein the learned Executive Magistrate has held that there is every possibility of serious law and order problem, which may result in murder and blood-shed etc. Hence, he ordered the Revenue Inspector, Baro Circle under the Kendrapara Tahasil to act as receiver with respect to the case lands. 3. It is not disputed that on 27.11.2008, the learned Executive Magistrate on receipt of the petition filed by the present opposite party no.2 called for a report from the Inspec¬tor In Charge, Kendrapara Police Station regarding law and order problem over the suit property. Both the parties were restrained by the Court till filing of written statement by the opposite party. Both the parties were restrained by the Court till filing of written statement by the opposite party. In course of hearing of the revision application, learned counsel for the petitioner submitted that as the order passed by the learned Magistrate on 16.12.2008 appointing Revenue Inspec¬tor, Baro Circle under the Kendrapara Tahasil was made without initiating a proceeding under Section 145 (I) of the Code, the order passed by the learned Magistrate is wrong. Learned counsel for the opposite parties however submitted that the revision application against the order of this nature is not maintainable and the Magistrate may pass the order of attachment under Section 145(8) of the Code. 4. Coming to the contention raised by the learned counsel for the opposite parties, it is held that the order passed by the learned Executive Magistrate directing attachment of the crops of the disputed land and appointing the Revenue Inspector as receiv¬er is not an interlocutory order. My view is fortified by the decision in the case of Rupa Jena alias Upendra Jena and others v. Tapai Swain and others, 1983 (2) Crimes 355. 5. The order passed by the learned Magistrate on 16.12.2008 suffers from two defects. Firstly, though the present petitioner has already appeared before the Magistrate, no copy was served on him of the petition dated 10.12.2001, where the present opposite party no.1 prayed to attach the land in question and appoint the Revenue Inspector, Baro Circle as the receiver. It is well settled that whenever an order is passed to the detri¬ment of a party, that party must be given a reasonable opportuni¬ty to show cause and being heard. In this case, such an order was passed even without notice to him. No opportunity was given to show cause and to put up his case. So the order passed by the learned Magistrate is wrong. Secondly, it is seen that though attachment order may be passed by the Magistrate under sub-sec¬tion (8) of Section 145 or sub-section (1) of Section 146 of the Code, the learned Magistrate has not applied his mind to see any requirement of any of those two sections are satisfied in this case. 6. Secondly, it is seen that though attachment order may be passed by the Magistrate under sub-sec¬tion (8) of Section 145 or sub-section (1) of Section 146 of the Code, the learned Magistrate has not applied his mind to see any requirement of any of those two sections are satisfied in this case. 6. Under sub-section (8) of Section 145 of the Code, if the Magistrate is of the opinion that any crop or other produce of the property, the subject of dispute in a proceeding under Sec¬tion 145 of the code pending before him is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for disposal of such property, or the sale-proceeds thereof, as he thinks fit. 7. Under Section 146 of the code, if the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. The first requirement for invoking the powers under Section 146(1) of the Code, is that an order must have been made by the Magistrate under Section 145(1) of the Code. Thereafter, the Magistrate must be satisfied about the fulfilment of any of the following conditions: (i) when the Magistrate considers the case to be one of emergency; or (ii) he decides that none of the parties was then in the possession as is referred to in Section 145; or (iii) if he is unable to satisfy as to which of them was in possession of the land in dispute. Before passing any order under Section 146(1) of the Code, an order under sub-section (1) of Section 145 is a sine qua non. In this case, the Magistrate has not made an order which is commonly known as “preliminary order” under sub-section (1) of Section 145 of the Code. Before passing any order under Section 146(1) of the Code, an order under sub-section (1) of Section 145 is a sine qua non. In this case, the Magistrate has not made an order which is commonly known as “preliminary order” under sub-section (1) of Section 145 of the Code. It is also seen that this is not a case where the Magistrate has held that the subject matter is subject to speedy and natural decay nor he has held that any of the three requirements under Section 146(1) of the Code is satisfied. Hence, the order passed by the learned Magistrate on 18.12.2008 is wholly without jurisdiction and is liable to be set aside. 8. Hence, the revision application is allowed. The order dated 18.12.2008 passed in Crl. Misc. Case No.155 of 2008 is quashed. The Magistrate is directed to apply his mind afresh and see if there is any apprehension of breach of peace relating to possession of any land etc. Then he may pass an order under sub-section (1) of Section 145 of the code, if he is satisfied about existence of breach of peace. Both the parties are directed to appear before the trial Court on 22.02.2010. Revision allowed.