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2010 DIGILAW 93 (ORI)

Krupasindhu Nayak v. State of Orissa

2010-02-17

I.MAHANTY

body2010
ORDER Heard Mr. S.K. Sahoo, learned counsel for the petitioner, Mr. P.S. Nayak, learned counsel for opposite party No. 2 and Mr. S.K. Nayak, learned counsel appearing for the State. In the present application under Section 482 Cr.P.C. chal¬lenge has been made to an order dated 5.9.2008 passed in Misc. Petition No. 152 of 2008 by the Executive Magistrate, Kendrapara. It appears that the present petitioner-Krupasindhu Nayak had filed the aforesaid misc. petition under Section 145 Cr.P.C. before the Executive Magistrate, Kendrapara on his apprehension of danger from the side of opposite party No. 2-Harihar Rout. It appears that an objection was filed by opposite party No. 2 and a prayer was made in the objection by the opposite party No. 2 to pass necessary orders for “eviction of the petitioner from the unauthorized occupation of the shop room in question with police assistance on realization of arrear dues.” This prayer for the opposite party No. 2-Harihar Rout ap¬pears to have been allowed by the Executive Magistrate, kendrapa¬ra by endorsing a direction on the body of the petition itself, directing the O.I.C., Rajkanika P.S. for vacating the shop room from unauthorized occupation of Krupasindhu Nayak petitioner therein. These limited facts make it clear that the Executive Magis¬trate, Kendrapara in passing the aforesaid order has thrown all the canons of law and procedure to the wind. It clearly appears therefrom that the said Executive Magistrate was fully unaware of the requirement of legal process and purportedly allowed the prayer of Harihar Rout, who was the opposite party in the said case and directed the petitioner’s eviction. Nothing more need to be noted except that such an order is unknown to law and it clearly exhibits a total lack of applica¬tion of judicial mind on the part of the Executive Magistrate, Kendrapara. In a proceeding under Section 145 Cr.P.C. the Execu¬tive Magistrate is not only incompetent to consider a “prayer” by an opposite party, he does not possess any jurisdiction to direct “eviction” even assuming a tenant remains in unauthorized posses¬sion of tenanted premises. Therefore, I have no hesitation to allow this CRLMC and quash the order dated 5.9.2008 as well as the consequential order passed on 15.12.2008 under Annexure-5. It is made clear that opposite party No. 2 Harihar Rout is at liber¬ty to initiate appropriate action before the Civil Court seeking eviction, if he so desires. Therefore, I have no hesitation to allow this CRLMC and quash the order dated 5.9.2008 as well as the consequential order passed on 15.12.2008 under Annexure-5. It is made clear that opposite party No. 2 Harihar Rout is at liber¬ty to initiate appropriate action before the Civil Court seeking eviction, if he so desires. The Executive Magistrate is directed to dispose of the 145 Cr.P.C. proceeding after hearing the learned counsel for the parties afresh in accordance with law. Interim order dated 13.4.2009 passed in Misc. Case No. 921 of 2009 stands vacated. CRLMC allowed.