RAMANI MOHAN MANDAL Vs. SANTOSH KUMAR MANDAI

JUDGEMENT

(1.) Heard learned counsel for the parties. Correctness of a composite order under Sections 145 and 146 of the Code of Criminal Procedure, 1973 (in short the CodeTT) is the subject matter of challenge in this revision application.

(2.) By the impugned order, the learned Executive Magistrate, Kujang ordered under Section 145 of the Code that members of both parties were restrained from going upon the disputed land and directed them to appear before the Court on 10-12-1987 and file their show cause. It was ordered under Section 146(2) of the Code that the land was attached and the Revenue Inspector, Japa was appointed as receiver for the disputed land.

(3.) According to the learned counsel for the petitioner such a composite order is not envisaged in law. A conspectus of the provisions contained in Sections 145 and 146 of the Code makes it clear that there is nothing in the Code prohibiting the Magistrate to pass composite order from which it can be known that he had exercised jurisdiction under Section 146(1) only after he took up the proceeding and decided to promulgate a preliminary order under Section 145(1) of the Code. Separate recording of the order under both the sections will be necessarily a matter of form only and not a statutory requirement. Instead, if the Magistrate decides and records a preliminary order under Section 145(1) and then attaches the subject of dispute under Section 146(1) at a stretch in the same order there is no statutory impropriety. The two can be segregated. It is even permissible to set aside one while maintaining the other. A similar view was expressed by this Court in 1977 C.L.R. 173: Theophil Xess and another v. Ghuyan Ekka and 57 (1984) C.L.T. 145: Brajamohan Nath v. Smt. Kesi Tripathy and another.