Orissa High Court
Radhamohan Panda And 23 Ors. vs Brundaban Naik And 9 Ors. on 3 April, 1986
Equivalent citations: 1986(I)OLR586
JUDGMENT K.P. Mohaptra, J.
1. In this criminal revision the petitioners who were the members of the first party, have prayed for quashing the proceeding under Section 145 in exercise of the inherent powers of this Court under Section 482 of the Code of Criminal Procedure ('Code' for short).
2. It is necessary to relate the history of the case to show how a proceeding initiated on police report on 16.11.1974 has still been kept alive even after a decade. On 16.11.1974 the preliminary order under Section 145 of the Code was drawn up and both parties were directed to appear and file their written statements Simultaneously, because appeared to be a case of emergency, the disputed land with standing crops was attached under Section 146(1) of the Code. In response to the notice, both parties appeared, filed their written statements and adduced evidence, both oral and documentary, on consideration of which the learned Executive Magistrate Bhanjanagar, by order dated 13.9.1976 declared the possession of the opposite parties, who were the members of the second party in the proceeding, in respect of the land In dispute. Against the said order, the petitioners came up in revision (Criminal Revision No. 320 of 1976) to this Court and challenged the order passed under Section 145 of the Code on the ground that after attachment of the disputed land under Section 146(1), the learned Executive Magistrate became function officio and had no further jurisdiction to continue the enquiry regarding possession. This Court by order dated 15.12.1977 disposed of the said criminal revision in the manner quoted below:
"The true interpretation of this provision has come up for consideration before this Court in a series of cases. It has been uniformly held both by a Division Bench as also by several learned Single Judges that Sub-Section (1) of Section 146 provides for three contingencies and where there is an order of attachment effected on the basis of emergency the proceeding so far as the learned Magistrate is concerned concludes and he has no jurisdiction to enquire into the claims of possession and conclude the matter by finding possession in favour of either party in that view of the matter I must accept the revision petition, vacate the final order on the footing that the trial Court had no jurisdiction to make the enquiry and direct that the lands shall remain under attachment until a competent Court determines the rights of the parties in respect of the same with regard to the person entitled to the possession thereof I would however make it clear that it would be open to the learned Magistrate to withdraw the attachment at any time if he would be satisfied that there is no longer any apprehension of breach of the peace with regard to the subject of dispute and in that event it would be competent for him to proceed with the enquiry and determine the dispute with reference to possession."
On 27-11-1978, i.e., nearly a year after the disposal of the criminal revision the Executive Magistrate considered the order of this Court and recorded that apprehension of breach of peace still existed. Therefore, he directed continuance of the attachment of the disputed land and appointed the Revenue Inspector, Nettanga, as receiver in respect thereof. On 3O-7-1979 on consideration of the decision reported in 47 (1979) C.L.T.600 (Trinath Mohanty v. Lakhan Napak and Anr.), he directed that the enquiry under Section 145(4) shall continue and accordingly issued notice on both parties to appear in Court and adduce evidence. Till the filing of this criminal revision on 7-3-1983, for some reason or other no further progress was made in the enquiry.
3. In this criminal revision, Mr, B. L. N. Swamy appearing for the petitioners raised the following contentions Which fall for decision:
(1) The proceeding under Section 145 of the Code was finally disposed of by order dated 15-12-1977 of this Court passed in Criminal Revision No. 320 of 1976. The learned Executive Magistrate thereafter had no jurisdiction to continue the enquiry with regard to possession of the disputed land. Interpretation of the provision of Section 146(1) will not give fresh jurisdiction to the learned Executive Magistrate to reopen a finally disposed of proceeding.
(2)A proceeding under Section 145 of the Code should not be, allowed to continue for over a decade, especially when a civil dispute between the parties is pending in the Supreme Court in respect of the disputed land.
Learned counsel for the opposite parties urged that a proceeding initiated under Section 145(1) must be concluded in the manner prescribed in Sub-Section (4) thereof.
4. Relying upon a decision reported In 1978 S C. C (Criminal) 100 (Chandu Naik and Ors. v. Sitaram B. Naik and Anr.) a Learned Single judge of this Court in the decision reported in 47 (1979) C.L.T.600 (supra) held that there is no automatic cessation of the proceeding under Section 145 on the passing of an order of attachment under Section 146(1) of the Code Law has also been settled in A.I.R.1980 S.C. 242 (Mathuralal v. Bhanwarlal and Anr.) that the Executive Magistrate's jurisdiction does not come to an end as soon as an attachment is made on the ground of emergency. The learned executive Magistrate relied upon the principle laid down in the aforesaid decisions and renewed the enquiry by order dated 30-7-1979 completely ignoring the order of this Court in Criminal Revision No. 320 of 1976, finally disposing of the proceeding under Section 145 of the Code. Even if the order passed by this Court in the said criminal revision was erroneous in law, until and unless it is set aside by the Supreme Court remains effective to ail intents and purposes. The learned Executive Magistrate had no jurisdiction to set at naught the effect of the order by reopening the proceeding under Section 145 without there being a fresh police report. He had jurisdiction to act in accordance with the order and not in derogation of it. By revising the proceeding under Section 145 and directing the parties to adduce evidence, he acted directly in derogation of the order of this Court it was open to him to act in accordance with it and withdraw the attachment at any time on satisfaction that the there was no longer any apprehension of breach of peace with regard to the subject of dispute and proceed with the enquiry to determine the possession of the parties on the date of the preliminary order. After virtual termination of the proceeding in terms of the order in Criminal Revision No. 320 of 1976 and in the absence of a fresh police report, he was not competent: to declare that there was still apprehension of breach of peace, because he had no material to arrive at that conclusion. It is indeed unfortunate that the learned Executive Magistrate proceeded with the enquiry in manner in direct violation of the order of this Court referred to above. Judicial discipline demands that a subordinate Court shall honour and give effect to the order of a superior Court In this background, the contention of Mr. B.L.N. Swamy is correct and I hold that by virtue of the order passed in Criminal Revision No. 320 of 1976 of this Court which is in full force, the proceeding under Section 145 was terminated in terms of it.
5. Proceedings under Section 145 of the Code are undoubtedly of emergent nature. They are intended to be disposed of as expeditiously as possible In the garb of a proceeding under Section 145, a dispute with regard to possession of land cannot be perpetuated for over a decade. If it is done, it would be abuse of the process of the Court, particularly when one can approach the Civil Court for appropriate remedy. It is stated in the revision petition that the opposite- parties filed a suit for partition and an ex parte preliminary decree was passed and the matter is now , pending before the Supreme Court. if this be the case and the civil proceeding is pending it was futile to continue the proceeding under Section 145. In this connection reference may be made to A.I.R. 1985 S. C. 472 (Ram Sumar Puri Mohant v. State of U.P. and Ors.). It has been held that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, there is hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the degree of the Civil Court is binding on the Criminal Court. In the aforesaid view of the matter, the contention of Mr. B. L N. Swamy to put a stop do the reputation of the proceeding under Section 145 of the Code for over a decade is tenable and, in the facts and circumstances of the case, 1 accept the same.
6. Before parting with the case Would repeat by saying that the learned Executive Magistrate would be competent to exercise jurisdiction in accordance with the order passed by this Court in Criminal Revision No. 320 of 1976.
7. For the reasons aforesaid and subject to the observation made the proceeding under Section 145 of the Code after passing of the order dated 30-7-1979 by the learned Executive Magistrate is quashed.