ANAM SAHU Vs. SUPHALA BEHERA

JUDGEMENT

(1.) THE aforesaid two revisions arise out of the same order dated 16.11.1993 passed by the learned Executive Magistrate, Angul in C.P. Ml Case No. 252 of 1993, a proceeding ultimately disposed of in accordance with the provision in Section 145, Cr.P.C.

(2.) THE first party in the aforesaid proceeding is the petitioner in Criminal Revision No. 187 of 1997 and the 2nd party members are the opposite party members. Out of them, opposite party No. 3/second party No. 3 having died in the meantime and not being substituted, his name has been struck up from the record. Second party Nos. 2 and 3 are the sons of Second party No. 1. The Second party No. 1 Suphata Behera filed Criminal Revision No. 16 of 1997 in the Court of Sessions Judge, Dhenkanal, and on being transferredto the file of Addl. Sessions Judge, Angul that was renumbered as Criminal Revision No. 16/126 of 1997. Because the same impugned order is under consideration in Criminal Revision No. 187 of 1997, therefore, as per the order of this Court the said Crl. Revision was called for hearing and disposal by the High Court and that is how that revision was renumbered as Crl. Revision No. 115 of 2001 in this Court. Argument in both the cases was heard analogously and this judgment shall abide the result in both the aforesaid Criminal revisions.

(3.) CONTENTION regarding want of jurisdiction of the Magistrate to convert the proceeding is taken up first being in the nature of preliminary issue. The prohibitory order under Sub section (1) of Section 144, Cr.P.C. being passed on 16.11.1993 because of the provision in Sub section (4) of Section 144, Cr.P.C., that order could have continued maximum for a period of two months. Admittedly, by 18.2.1994 that period of two months had just expired. It appears from the above quoted order dated 18.2.1994 that learned Magistrate did not convert the proceeding from one Under Section 144, Cr.P.C. to that Under Section 145, Cr.P.C. because he specifically mentioned that 'Hence the case under Section 144, Cr.P.C. is to be closed as the time period for it is over.' The next sentence, which is material for the present purpose, is that 'A case under Section 145(1) is to be initiated forthwith to arrive at the conclusion.' In view of that position on record, the ratio in the case of Tapasya Behera and Anr. v. Padma Charan Behera, 1996(11) OLR 337, which is relied on by the second party, is not applicable in as much as here there is no attempt made to convert the proceeding in the manner which was done in that reported case. In that context the second party also referred to the case of Sri Dhirendranath Swain V. Hadi Raul, (2000) 18 OCR 613. In that case while disposing an application Under Section 144, Cr.P.C. learned Magistrate directed the parties to maintain status quo until the matter is decided by the competent Civil Court and this Court found such direction to be without jurisdiction and an observation was made that where there is a dispute between the parties concerning land or water giving rise to apprehension of breach of peace, then the appropriate proceeding should be one Under Section 145, Cr.P.C. That ratio is also of no relevance so far as the present dispute is concerned. It is clear from the narration of facts and the relevant order, i.e. order dated 18.2.1994 that it was not a case of converting the proceeding, but two days after expiry of two months the Magistrate directing for deciding the dispute in accordance with Section 145, Cr.P.C.