BHIKARI CHARAN RATH Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD .

(2.) THIS revision application has been filed by the 2nd party in Criminal Misc. Case No. 72 of 1995 under Section 145 Cr.P.C. of the Court of Executive Magistrate, Kendrapara, challenging issue of the prohibitory order while passing the preliminary order under Sub -Section (I) of Section 145 Cr.P.C. The impugned order reads as hereunder :

(3.) THEREFORE , keeping in view the aforesaid submission and the position of law, this Court finds that the order, passed by learned Executive Magistrate 'restraining both the parties to construct any pucca building on the scheduled land until further order' being not an order in confirmity with the provision in Section 145, Cr.P.C, that stands vacated. However, upon his satisfaction about existence of sufficient cause, on any of the grounds as provided in Sub -Section (1) of Section 146, Cr.P.C, learned Executive Magistrate may pass appropriate order for attachment of the subject -matter of dispute and if necessary he can pass appropriate order under Sub -Section (2) of Section 146, Cr.P.C. for looking after the property or to appoint a receiver. At present, when the proceeding under Section 145, Cr.P.C. is pending at the stage of appearance of the 2nd party therefore, the only ground available is that of emergency, as provided in Sub -Section (1) of Section 146. If such emergency shall be found existing, learned Executive Magistrate may invoke the power to pass appropriate order. In that respect, learned Magistrate shall pass appropriate order after affording reasonable opportunity of hearing to both the parties. If required, learned Magistrate may allow the parties to file affidavits in support and against the motion of attachment. If, he shall think it necessary, may call for a report from the concerned Officer -in -charge of the Police station regarding existence of emergency. The said matter be attended to expeditiously and if necessary by granting short adjournment Apart from that in case of extreme urgency, learned Magistrate may pass appropriate interim orders which may be continued or discontinued after hearing the parties in the aforesaid manner.