CHITTARANJAN PARIDA Vs. EXECUTIVE MAGISTRATE CUTTACK

JUDGEMENT

(1.) ORDER :-

(2.) PETITIONER got initiated Criminal Misc. Case No. 1199 of 1997, a proceeding under Section 144, Cr. P.C., in the Court of Executive Magistrate, Cuttack with respect to a small fraction of Plot No. 212 of Khata No. 45 totally measuring Ac. 0.38 situated at Matagajapur in the township of Cuttack under Cuttack Sadar Police Station. In the application under Section 144, Cr. P.C., petitioner alleged that the second party/opposite party No. 2, who is the owner and in possession of the adjoining plot No. 213 had started digging a pit after encroaching upon 3 feet of land from the disputed case land so as to construct a Barpali latrine on it. He filed the application before the Executive Magistrate on 3-12-97 along with the prayer to issue interim ex parte prohibitory order. Learned Executive Magistrate allowed the said application and while issuing notice to show-cause also issued ex parte prohibitory order preventing any construction over the case land by the second party. On 5-12-97 petitioner filed an application in the Court of Executive Magistrate alleging therein about forcible consturction being undertaken by the petitioner in spite of the prohibitory order passed by the Court. A show cause notice was also issued in that respect. The second party/opposite party No. 2 filed two separate show causes. In the show-cause regarding the proceeding u/S. 144, Cr. P.C., not only he challenged the maintainability of the proceeding but also stated that he is constructing the latrine on his own land without making any encroachment. Accordingly, he prayed to drop the proceeding. In the show-cause against the application for initiation of the proceeding u/S. 188, I.P.C. opposite party reiterating the aforesaid stand also contended that he has neither violated the Court's order nor he has undertaken any construction any part of the disputed case land i.e. plot No. 212. In that respect, learned Executive Magistrate called for a report from the local police. The S. I. of Police of Kandanpur Out-post, reported that after promulgation of the order dated 4-12-97 and subsequently on 8-12-97 and 10-12-97 there was information before him regarding the second party going on with the construction work of the latrine. However, before that on 7-12-87 the said S. I. of police submitted a report that the second party expressed that he was constructing the latrine on his own plot and therefore on request he was taking steps for demarcation. When the matter relating to lodging of a complaint for the offence u/S. 188, I.P.C. remained pending, on 7-1-98, learned Executive Magistrate passed order making theprohibitory order absolute against the opposite party No. 2 and directed the Tahsildar to demarcate the lands of both the parties to ascertain the situation of the land wherein the alleged construction of the latrine was going on by the 2nd party. He also observed that after receipt of such report from the Tahsildar further orders shall be passed relating to the petition for filing of the complaint u/S. 188, Cr. P.C. On 6-5-98 the matter again revive on the application of the 1st party as the Tahsildar submitted his report. The case adjourned for several dates but both the parties remained absent. On 14-7-98 learned Executive Magistrate perused the reports earlier submitted by the police officers and the report of the Tahsildar where on demarcation, he found an encroachment of 6" from the plot of the petitioner for construction of the latrine. After perusal of such report and consideration of the application filed by the petitioner, on 14-7-98 learned Executive Magistrate recorded the findings that in a demarcation absolute accuracy cannot be maintained and overlapping of measurement by one or two links is always possible and therefore the alleged encroachment being not clinchingly proved and when the second party/opposite party No. 2 has not proved to have constructed the latrine on plot No. 212 there is no violation of the prohibitory order u/S. 144, Cr. P.C. and therefore, no complaint is liable to be filed against the second party.