BASANTA KUMAR RAJA Vs. MARKANDA PRADHAN AND ORS.

JUDGEMENT

(1.) THE short point that arises for consideration in this case is whether the absence of the preliminary order under Section 145(1) of the Code of Criminal Procedure vitiates the final order passed in such proceedings. The facts are these : Markanda Pradhan opposite party No. 1 filed an application in the Court of the Sub -divisional Magistrate, Boudh on 2.9.1967 to the effect that he was in possession of a piece of bhogra land and that the Petitioner and two others who are named as opposite parties 2 and 3 in this petition were trying to disturb his possession and that proceedings under Section 107, Code of Criminal Procedure might be taken against them. On 27 -11 -1967, the learned Magistrate directed the opposite parties therein to show cause as to why they should Dot execute bonds to keep peace. Thereafter, he transferred the case for disposal to another Magistrate before whom on a subsequent date the second party appeared and filed a written statement showing cause as to why they should not execute any bonds. After perusing the petition filed by Markanda Pradhan and the written statement by the second party members, the learned Magistrate considered that a proceeding under Section 107, Code of Criminal Procedure would not be of any effect and ordered that the proceeding should be converted to one under Section 145, Code of Criminal Procedure and informed the parties who were present in Court accordingly and directed them to file written statements, affidavits and documents, if any, by the next date. It may be mentioned here that no preliminary order as required by Section 145, Code of Criminal Procedure was issued. On the subsequent date, the parties filed written statements, affidavits etc. and after necessary enquiry, the Magistrate passed an order declaring that the first party, namely, Markanda Pradhan was entitled to possession of the disputed land until evicted therefrom in due course of law. The correctness of this order is challenged in this revision petition.

(2.) MR . H.G. Panda, appearing for the Petitioner challenges the order mainly on the ground that as no preliminary order under Section 145(1), Code of Criminal Procedure was passed in this case, the subsequent proceedings have been vitiated. Sub -section (4) of Section 145, Code of Criminal Procedure requires that the Magistrate should decide the question whether and which of the parties was at the date of the preliminary order in possession of the subject matter of dispute. If there is no preliminary order, the question which the Magistrate has to decide, cannot be decided because in that case, there is no particular date with reference to which the possession has to be determined. That apart, the very foundation for a proceeding under Section 145; Code of Criminal Procedure is that the dispute between the parties should be one which is likely to cause breach of peace and this satisfaction of the Magistrate should be apparent from the preliminary order that is passed. We are not concerned here with a Case of there being a preliminary order, but which is defective in form and is not strictly in accordance with the requirements of Section 145(1), Code of Criminal Procedure in which case alone, the question whether it is a mere curable irregularity can arise for consideration. Here is B case of total absence of a preliminary order which is the foundation for a proceeding under Section 145, Code of Criminal Procedure. It is now well -settled that the omission to issue an order under Section 145(1) vitiates the entire order of the Magistrate passed in the proceeding.