Orissa High Court
Subash Chandra Tripathy vs State Of Orissa And Ors. on 2 April, 2018
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 2762 Of 2006
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with Criminal Misc. Case No.16 of
1996 disposed of by Executive Magistrate, Bargarh and Criminal
Revision No. 38 of 2005 disposed of by Addl. Sessions Judge,
Bargarh.
---------------------------
Subash Chandra Tripathy ....... Petitioner
-Versus-
State of Orissa and Ors. ....... Opposite parties
For Petitioner: - Mr. J. R. Dash
Mrs. K.L. Dash
Miss M. Rout
D.N. Pattanaik
For State - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
For Opp. Parties
nos.2 to 5: - None
---------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Hearing & Judgment: 02.04.2018
---------------------------------------------------------------------------------------------------
2
S. K. SAHOO, J.Heard Mr. J.R. Dash, learned counsel for the petitioner and Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate for the State of Orissa .
None appears on behalf of the opposite parties nos. 2 to 5.
In this application under section 482 of Cr.P.C., the petitioner Subash Chandra Tripathy has prayed to set aside the impugned judgment dated 26.10.2006 passed by the learned Additional Sessions Judge, Bargarh in Criminal Revision No.38 of 2005 in dismissing the revision petition and thereby confirming the order dated 10.10.2005 passed by the learned Executive Magistrate, Bargarh in Criminal Misc. Case No.16 of 1996 in a proceeding under section 145 of Cr.P.C.
The chronology of events which has been furnished by the learned counsel for the petitioner by way of a date chart reveals that the officer in charge of Bargarh police station filed non-FIR No.1 of 1996 before the learned Executive Magistrate, Bargarh on 30.01.1996 and on that basis, a proceeding under section 144 of Cr.P.C. was instituted vide Criminal Misc. Case No.16 of 1996 impleading the petitioner Subash Chandra Tripathy as the first party and the opposite parties nos. 2 to 5 namely, Nityananda Satpathy, Rabindra Satpathy, Rajkishore Satpathy and Pradeep Satpathy as the second party. 3
The learned Executive Magistrate, Bargarh on 12.02.1996 passed an order restraining the opposite parties nos.2 to 5 to enter upon the case land and thereafter, the case was converted to one under section 145 of Cr.P.C. and the case land was placed under the orders of attachment as per the provision under section 146(1) of Cr.P.C. Ultimately the learned Executive Magistrate, Bargarh disposed of the 145 Cr.P.C. proceeding on 30.10.1996 in favour of the petitioner/first party confirming his possession.
The second party members preferred Criminal Revision No.62 of 1996 before the learned Additional Sessions Judge, Bargarh challenging the order dated 30.10.1996 passed by the learned Executive Magistrate, Bargarh and the learned Revisional Court after hearing both the parties vide order dated 09.09.1998 remanded the case to the learned Executive Magistrate, Bargarh for fresh disposal in accordance with law. After remand of the case, the learned Executive Magistrate, Bargarh heard both the parties and passed the fresh order on 18.06.2001 declaring possession of the scheduled land in favour of the second party members. The petitioner being aggrieved against the order dated 18.06.2001 preferred Criminal Revision No.27 of 2001 before the learned Additional Sessions Judge, Fast Track Court, Bargarh and in the said revision petition, the 4 petitioner prayed for stay of order of the learned Executive Magistrate, Bargarh and also prayed for delivery of possession of the scheduled land to him. The learned Revisional Court refused to grant stay as per the order dated 26.02.2001 which was challenged by the petitioner-first party before this Court in an application under section 482 Cr.P.C. in Criminal Misc. Case No.5765 of 2001. This Court vide order dated 28.06.2001 disposed of the 482 Cr.P.C. application and directed the learned Revisional Court to inquire into the delivery of possession and decide the matter of stay afresh. The learned Revisional Court refused the grant of stay and challenging such refusal order, the petitioner again approached this Court by filing writ petition vide O.J.C. No.9309 of 2001 and during the pendency of the said writ petition before this Court, the learned Revisional Court finally disposed of Criminal Revision No.27 of 2001 and set aside the order of the learned Executive Magistrate dated 18.06.2001 and remanded the case for fresh hearing. After the remand order, the learned Executive Magistrate, Bargarh heard the Criminal Misc. Case No.16 of 1996 and disposed of the same on 10.10.2005 and decided the possession in favour of the opposite parties nos. 2 to 5-second party. The petitioner-first party again challenged the order of the learned Executive Magistrate, Bargarh dated 10.10.2005 before the learned Additional Sessions 5 Judge, Bargarh in Criminal Revision No.38 of 2005. As final order was passed in Criminal Revision No.27 of 2001, the writ application bearing O.J.C. No.9309 of 2001 which was filed by the petitioner-first party became infructuous and accordingly, as per order dated 03.04.2006, the same was dismissed as withdrawn.
The learned Additional Sessions Judge, Bargarh decided the revision petition in Criminal Revision No.38 of 2005 and passed the impugned judgment on 26.10.2006 and dismissed the revision and thereby confirmed the order passed by the learned Executive Magistrate, Bargarh in Criminal Misc. Case No.16 of 1996 as per order dated 10.10.2005.
Mr. J. R. Dash, learned counsel appearing for the petitioner challenging the impugned order dated 10.10.2005 of the learned Executive Magistrate, Bargarh as well as the judgment and order dated 26.10.2006 passed by the learned Additional Sessions Judge, Bargarh in Criminal Revision No.38 of 2005 contended that the impugned order and impugned Judgment are illegal and even though in Criminal Revision No.27 of 2001, the learned Revisional Court while setting aside the order dated 18.06.2001 passed by the learned Executive Magistrate directed for disposal of the case in accordance with law with a further direction to afford opportunity to both the 6 parties in dispute to adduce further oral and documentary evidence, if any, if they so like but no such opportunity has been provided to the petitioner. It is further stated that the observation of the learned Courts below regarding consideration of the registered sale deed is faulty and therefore, the impugned order and impugned judgment passed by the Courts below are not sustainable in the eye of law and the same are liable to be set aside.
Mr. Prem Kumar Patnaik, learned Additional Government Advocate appearing for the State of Orissa-opposite party no.1 supported the impugned order and judgment passed by the Courts below and contended that not only there is compliance of direction issued by the learned Revisional Court in Criminal Revision No.27 of 2001 but in the garb of this application under section 482 of Cr.P.C., the second revision petition should not be entertained particularly when there is no palpable illegality committed by the Courts below in adjudicating the cases.
In case of Krishnan -Vrs.- Krishnaveni reported in (1997) 13 Orissa Criminal Reports (SC) 41, the three Judge Bench of the Hon'ble Supreme Court has held that the object of section 397(3) of Cr.P.C. is to put a bar on simultaneous revisional applications to the High Court and to the 7 Court of Session so as to prevent unnecessary delay and multiplicity of proceedings. When revision has been barred by section 397(3) of the Code, ordinarily a person accused/complainant cannot be allowed to take recourse to the revision to the High Court under section 397(1) or under the inherent powers of the High Court under section 482 of Cr.P.C. since it may amount to circumvention of the provisions of section 397(3) or section 397(2) of the Code. It is further held that if the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is, therefore, to meet ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under section 397(1) read with section 401 of the Code. Such power has to be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of the proceedings.
8
So far as the first contention of Mr. Dash is concerned, on perusal of the Revisional judgment passed by the learned Addl. Sessions Judge, Fast Track Court in Criminal Revision No.27 of 2001 which was disposed of on 26.02.2005, it appears that while setting aside the order dated 18.06.2001 of the learned Executive Magistrate and remanding the case to the learned Executive Magistrate for disposal in accordance with law, it was specifically observed by the learned Revisional Court that the learned Magistrate shall also afford opportunity to the parties in dispute to adduce further evidence oral and documentary, if any, if they so like.
On perusal of the impugned judgment passed by the Revisional Court, it appears that after the remand order was passed by the Revisional Court on 26.02.2005, the learned Executive Magistrate provided opportunity to the parties to adduce further materials in support of their respective plea of possession and conducted inquiry as provided under sub-section (4) of section 145 of Cr.P.C. The impugned order dated 10.10.2005 of the learned Executive Magistrate, Bargarh also indicates that in obedience to the revisional order dated 26.02.2005, the Court took up the case on 10.03.2005 in presence of the advocate for first party and adjourned case to 14.03.2005. On 14.03.2005 the opposite parties filed no step for 9 which the case was posted to 23.03.2005 for evidence, on which date the first party filed an application for adjournment and accordingly, adjournment was granted till 31.03.2005 and thereafter, nine adjournments were taken by the first party and at last both the parties filed their respective documents which were admitted as per section 35 of the Evidence Act.
In view of the observation of the Courts below regarding opportunity being provided to both the parties, the contention of the learned counsel for the petitioner that the judgment and order dated 26.02.2005 passed by the learned Revisional Court has not been complied with and no opportunity of hearing has been afforded to the petitioner is not correct.
Coming to the second contention, the learned Executive Magistrate after hearing both the parties and going through the orders and observations of the higher Courts and also taking into account the document has observed as follows:-
"It comes expedient to point out that certified copy of Regd. Gift deed No.4479 dated 10.09.80 filed by Ist party and unregistered sale deed dated 27.05.1945 filed by 2nd party along with respective evidence adduced from both side are the main factors for consideration of the dispute related to the case land. Other documents related to respective claims leading to their recorded properties under revenue records 10 which are also linked to the ownership of case land. On clear examination of facts, it seems that both parties are tied with social relations. Petitioner No.1 is daughter of Hiralal Satapathy and petitioner no.2 is the son-in-law. O.P. No.1 Nityananda Satpathy is the cousin brother of Hiralal Satpathy according to show cause filed by O.Ps. O.P. Nos.2, 3 and 4 are sons of O.P. No.1. The claim advanced in the dispute is through the registered gift deed No.4479 dt./10.09.80 wherein the case land pertaining to plot No.1855 is found in deep and tampering nature due to want of corrections in Red ink by the supervising officer or his initials there in. Therefore, this document is suffering from benefit of doubts. If at all this can be taken to credibility, it is a transaction in the year 1980 by one Hadu Satapathy and Markand Satpathy.
The opposite party stands on the unregistered sale deed dated 27.05.45 executed by one Gananath Mahapatra, S/o Nakula Mohapatra for consideration of Rs.30/- only which was admissible under section 90 of Indian Evidence Act and also under the Registration Act prior to enforcement of OLR Act. So it is previously held to be a true transaction by the actual owner and possessor of case land although the particularity of plot is not scribed 11 except the descriptive situations and its boundaries.
Similarly on going to the statements evidenced by P.W.1 and P.W.2 bear less
acceptability than the evidences adduced by D.Ws.1, 2 and 3 owing to the fact that there was family partition of Satpathy family prior to 1949 and two-third share of Nilambar Satpathy has been confirmed by Hon'ble Joint Commissioner, Sambalpur vide consolidation Revision Case No.213/93 in which there seems no case land in terms of plot No. but it is evidenced that the branch of Banka Satpathy includes Hadu Satpathy who have left Khandhata since long and staying at Kamira.
Now coming to case plot 1855, it is a piece of Govt. land where in several persons own their house hold and do not possess any ROR due to lack of detail survey of Basti site. The document dated 27.05.1945 executed by Gananath Mohapatra in favour of O.Ps. further speaks of similar previous transaction by him and his father Nakul Mohapatra in 1920 about which bears legal presumptive value in comparison to the certified copy of Regd. Gift deed No.4479 dated 10.09.1980 filed by Ist party.
In the circumstances, I am not inclined to make an alteration in the order passed by this Court on dated 18.06.2001 which forms part of 12 this case record. But for the purpose of strict adherence to the orders of Hon'ble High Court vide order dated 26.07.2001 passed in MC No.9678/2001 related to OJC No.9309/2001, there can be no further direction from this Court at this stage and final decision of the Hon'ble Apex Court shall be binding to all concerned."
The Revisional Court in the impugned judgment has also considered the contentions raised by the learned counsels for the respective parties and held as follows:-
"3. Before adverting to the contention raised by the counsel for the parties, I like to reiterate that the primary object of section 145(1) Cr.P.C. is the prevention of breach of peace arising in respect of and relating to immovable property and not to determine the right and title of the parties. The Civil Court has got jurisdiction to decide the question relating to the complicated question as to title and possession and matter incidental thereto. The jurisdiction of the Civil Court and the Criminal Court operate in different fields, while the jurisdiction of the Civil Court revolve round the title, interest and possession of parties, the very purpose of an order under section 145 Cr.P.C. is to prevent the breach of peace at the instance of the parties and to compel them to have their right adjudicated by the competent Court having jurisdiction and not to take the law in to their own hands. In view of 13 the aforesaid settled position of law, I reiterate that while adjudicating such a dispute relating to any land, the concerned Magistrate neither decides conclusively the right, title and interest claimed by the rival parties, nor its finding on possession is conclusive in nature. Permanent solution to such dispute can be availed by any of the parties by approaching the competent Court of jurisdiction having the authority and power to adjudicate the matter relating to right, title, interest and possession including the relief of recovery of possession. In this legal settings, on perusal of the impugned order the contention is not found to be correct inasmuch as the learned Executive Magistrate referred to oral and documentary evidence relied upon by the parties and did not record the finding on possession solely on the basis of order dated 18.06.2001. The learned Magistrate in its lengthy order highlighted the factum of possession, discussed the evidence thread bare and reached to a conclusion that the O.Ps. are in possession on the date of preliminary order on proper assessment of the evidence. I do not find any ground to disturb the conclusion reached by the learned Court below, the Magistrate having referred to the matter relied on by the parties."
After going through the impugned order passed by the learned Executive Magistrate, Bargarh as well as the 14 impugned judgment of the learned Additional Sessions Judge, Bargarh, I am of the view that both the Courts below have applied their mind to the contentions raised and adjudicated the matter and there is no glaring infirmities and illegality in the same and it cannot be said that there is any miscarriage of justice. It is not necessary for this Court to examine the whole evidence threadbare in exercising jurisdiction under section 482 of the Cr.P.C. and therefore, in the garb of second revision petition, I am not inclined to the entertain this application under section 482 Cr.P.C.
Accordingly, the CRLMC application stands dismissed. The order passed by the learned Executive Magistrate, Bargarh dated 10.10.2005 in Criminal Misc. Case No.16 of 1996 which was upheld vide impugned judgment and order dated 26.10.2006 of the learned Additional Sessions Judge, Bargarh in Criminal Revision No.38 of 2005 stands confirmed.
.................................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 2nd April, 2018/Sisir