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2016 DIGILAW 1077 (ORI)

A. Prakash Rao v. S. D. M. , Berhampur

2016-11-09

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. This revision petition has been filed by the petitioner A.Prakash Rao with a prayer to quash the order dated 18.3.2016 passed by the learned Sub Divisional Magistrate, Berhampur in Misc. Case No.38 of 2015 in a proceeding under section 133 of Cr.P.C. in directing the petitioner to obey the orders of the Court dated 5.5.2015, 19.5.2015 and 2.7.2015 and to obtain all the required permission from the concerned authorities to run the Kalyan Mandap and take steps not to create any public nuisance in future. 2. Learned counsel for the petitioner contended that earlier the petitioner approached this Court in Criminal Revision No.507 of 2015 challenging the order dated 2.7.2015 passed by the learned Sub-Divisional Magistrate, Berhampur and this Court disposed of Criminal Revision vide order dated 9.9.2015 directing the Sub-Divisional Magistrate, Berhampur to make an enquiry as contemplated in Chapter-XB of the Code of Criminal Procedure and pass a final order on the same within two months from the date of receipt of the L.C.R. It is the further contention of learned counsel for the petitioner that after receipt of the order of this Court, the learned Sub-Divisional Magistrate, Berhampur directed one P.K. Maharana, ORS, Asst. Collector cum Executive Magistrate to visit the case site to enquire and to submit a factual report and accordingly, Sri P.K. Maharana submitted his enquiry report on 8.2.2016 and basing on such report, the learned Sub-Divisional Magistrate, Berhampur passed the impugned order. It is the further contention of learned counsel for the petitioner that in view of section 138 of the Cr.P.C., the Magistrate should have taken evidence in the matter and thereafter, the case should have been decided but merely accepting the report of Sri P.K. Maharana and without giving any opportunity to the respective parties to lead evidence, the impugned order has been passed which is not sustainable in the eye of law. Learned counsel for the Opposite party no.2 on the other hand submitted that there is no illegality or infirmity in the impugned order and therefore, this revision petition should not be entertained. 3. Learned counsel for the Opposite party no.2 on the other hand submitted that there is no illegality or infirmity in the impugned order and therefore, this revision petition should not be entertained. 3. Considering the submissions of learned counsel for the respective parties and on perusal of the impugned order, it is apparent that no evidence has been taken by the learned Sub-Divisional Magistrate, Berhampur and the impugned order has been passed solely basing upon the factual report which was submitted by Sri P.K. Maharana. In view of section 139 of the Cr.P.C., the Magistrate may, for the purpose of inquiry under section 137 or 138 of the Cr.P.C. direct a local investigation to be made by such person as he thinks fit. In view of section 140 of the Cr.P.C., such report may be read as evidence in the case. The expression ‘shall take evidence in the matter’ which appears in section 138(1) of Cr.P.C. means the Magistrate shall take evidence upon the matter of the complainant as well as of the opposite party as in a summons case. It is necessary in the interest of justice that the evidence of both the sides should be considered at length by the Court in coming to a decision. The evidence of the complainant at whose instance proceedings under section 133 of the Cr.P.C. are initiated is to be recorded and thereafter, the evidence of the opposite party is to be recorded. Similarly the documentary evidence adduced by the parties should be duly considered. Where no opportunity for adducing evidence has been given to the parties under section 138 of the Cr.P.C., the final order of the Magistrate would be illegal, without jurisdiction and is liable to be set aside. 4. In view of the settled principle of law, when it is apparent on the face of the impugned order that after receipt of the report from Sri P.K. Maharana, learned Sub-Divisional Magistrate has not furnished the copy of the enquiry report to either side and has not taken any evidence either from the complainant or from the opposite parties, I am of the view that the mandatory provisions under section 138 (1) of the Cr.P.C. has been flouted and therefore, I am of the view that the impugned order dated 18.3.2015 passed by the learned Sub-Divisional Magistrate, Berhampur is not sustainable in the eye of law. Accordingly, the matter is remitted back to the learned Sub-Divisional Magistrate, Berhampur who shall furnish the copy of the enquiry report of Sri P.K. Maharana to both the parties and take evidence from the complainant as well as opposite parties and after giving due opportunity of hearing to both the sides dispose of the proceeding in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the proceeding. The entire exercise should be completed by the learned Sub-Divisional Magistrate, Berhampur within a period of one month from the date of appearance of both the sides which with the consent of the learned counsels for both the sides is fixed to 15th November 2016. Registry is directed to send back the L.C.R. along with a copy of the judgment to the learned Sub-Divisional Magistrate, Berhampur for compliance.