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2016 DIGILAW 1047 (ORI)

Somnath Dwivedy v. S. D. M. , Deogarh

2016-11-07

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. 1. Mr. Pramod Kumar Mishra, C.R. Sahu, T.R. Meher and R.K. Meher filed Vakalatnama on behalf of the opp. party no.2 which is taken on record. 2. This revision petition has been filed by the petitioner Somnath Dwivedy challenging the impugned order dated 13.10.2016 passed by the learned Sub-Divisional Magistrate, Deogarh in Criminal Misc. Case No. 14 of 2016 in converting the proceeding under section 144 of Cr.P.C. to one under section 145 Cr.P.C. and disposing of the 145 Cr.P.C. proceeding on the very same day after perusing the written statements filed by the respective parties and declaring the possession of the case land with the 1st party i.e. opp. party no.2 Umakanta Dwivedy and further holding that the opp. party no.2 is entitled to retain such possession until ousted by due course of law and forbade any disturbance of possession of the opposite party no.2. 3. Earlier the petitioner approached this Court in Criminal Revision no. 749 of 2016 challenging the ex-parte order dated 17.08.2016 passed by the learned Sub-Divisional Magistrate, Deogarh in which the petitioner and other second party members were restrained from entering upon the case land for a period of two months or until further orders. This Court vide order dated 03.10.2016 directed the learned S.D.M., Deogarh to take a decision on the application filed by the petitioner on dated 20.08.2016 on or before 14th October 2016 in accordance with law after hearing both the parties. 4. The learned counsel for the petitioner submitted that the impugned order has been passed after receipt of the report of Inspector in charge, Barkote police station. The learned Sub-Divisional Magistrate, Deogarh converted the 144 Cr.P.C. proceeding to one under section 145 Cr.P.C. and on the very same day, after perusing the written statements of the respective parties and the police report passed in the impugned order. Learned counsel for the petitioner submitted that the impugned order is not sustainable in the eye of law, as after converting the proceeding to one under section 145 Cr.P.C., the learned Sub-Divisional Magistrate should have followed the procedure as laid down under sub-section (4) of section 145 Cr.P.C. 5. Learned counsel for the opp. party no.2 on the other hand supported the impugned order and contended that there is no illegality or impropriety in the order and therefore, the revision petition should be dismissed. 6. Learned counsel for the opp. party no.2 on the other hand supported the impugned order and contended that there is no illegality or impropriety in the order and therefore, the revision petition should be dismissed. 6. Sub-section (4) of Section 145 Cr.P.C. of the Code indicates that once the written statements are filed by virtue of the service of the preliminary order, the Magistrate has to conduct an enquiry which includes hearing the parties, receiving all such evidence as may be produced by the parties, including taking further evidence if necessary and to decide which of the parties was in possession of the subject of the dispute on the date of preliminary order. The Magistrate is not entitled to decide the merits or the claims of the parties regarding right to possess the subject of dispute. The Magistrate has to thoroughly and carefully go through the written statements, afford right of audience to the parties and provide them sufficient opportunity to lead oral and documentary evidence in respect of their respective claims. The proviso to sub-section (4) indicates that the Magistrate can declare the possession of a party whom he considers has been forcibly and wrongfully dispossessed within two months next before the date on which the report of the police officer or other information was received by him or after that and before the date of the preliminary order. 7. In view of such clear cut statutory provision as enumerated under sub-section (4) of Section 145 Cr.P.C., when the learned Sub-Divisional Magistrate converted the proceeding to one under section 145 Cr.P.C., he should have followed the procedure laid down under that section which has not been 1st done and therefore, the declaration of Magistrate that the party i.e. opp. party no.2 is in possession of the suit land and entitled to retain such possession until ousted by due course of law and further forbidding any disturbance of the possession of the opposite party no.2 is not sustainable in the eye of law and therefore, the impugned order is hereby set aside. 8. Since both the parties have already filed the written statements, learned Sub-Divisional Magistrate, Deogarh shall do well to expedite the proceeding in Criminal Misc. Case No. 14 of 2016 and after giving due opportunity of hearing to the respective parties to adduce oral and documentary evidence, conclude the proceeding by end of December, 2016. 8. Since both the parties have already filed the written statements, learned Sub-Divisional Magistrate, Deogarh shall do well to expedite the proceeding in Criminal Misc. Case No. 14 of 2016 and after giving due opportunity of hearing to the respective parties to adduce oral and documentary evidence, conclude the proceeding by end of December, 2016. The parties are directed to co-operate the learned Sub-Divisional Magistrate for early disposal of the proceeding. 9. Accordingly, the revision petition is allowed.