NIRANJAN BEHERA Vs. LAXMIDHAR RANA

JUDGEMENT

(1.) This revision is directed against the order passed by the learned Additional Sessions Judge, Cuttack, setting aside an interlocutory order passed by the Executive Magistrate, Cuttack, in a proceeding under Section 147 of the Code of Criminal Procedure ('Code' for short).

(2.) The parties belong to Cuttack town. The petitioners have their house on plot No.1439. The opposite parties have their house on adjoining plot No. 1438. There is a passage on parts of plot No. 1438 and another adjoining plot No.1441 in order to approach the petitioner's house from the public lane and this seems to be the only passage. The opposite parties obstructed the passage, as a result of which the petitioners were deprived of using the same. This gave rise to a dispute between the parties leading to apprehension of breach of peace. The petitioners. therefore, moved the Executive Magistrate by filing an application which was forwarded to the police for enquiry and report. After receipt of the report of enquiry from the police, the Executive Magistrate promulgated a preliminary order under Section 147 of the Code and at the same time passed an interlocutory order which reads as follows : -

(3.) S. 147 of the Code deals with apprehension of breach of peace when dispute is raised concerning rights of use of land or water. If the Executive Magistrate is satisfied from the report of a police officer or upon other information that a dispute is likely to cause a breach of peace regarding any alleged right of user of any land or water, he shall make an order in writing stating the grounds of his satisfaction and shall direct the parties concerned in such dispute to attend his court and put in written statements of their respective claims. After appearance and filing of written statements by the parties, the Executive Magistrate shall peruse the same, receive all such evidence as may be produced and then decide whether such right exists. In making such enquiry, the provisions of S.145 of the Code as far as possible may be applied. If the would find that any such right exists, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right. To be more specific, the ultimate order that can be passed is u/sub-s. (3) which is quoted below :