SIBA PRASAD MOHARANA Vs. DHADI NAYAK

JUDGEMENT

(1.) THE petitioner assails the order of the Sub -divisional Magistrate, Jagatsinghpur in Criminal Misc. Case No. 151 of 1998 passed under Section 147 of the Code of Criminal Procedure.

(2.) THE learned counsel for the petitioner submits that earlier, the very same Sub -Divisional Magistrate had passed an order under Section 133, Cr.P.C. restraining the petitioner from obstructing user by any other person of the disputed land which is recorded under Sthitiban status in the name of the petitioner and directing him to establish his right in the Civil Court. The said order was challenged in Criminal Revision No. 9 of 1998 before the learned Additional Sessions Judge and by order dated 16.5.1998, the order was set aside, holding that in a proceeding under Section 133, Cr.P.C., a Magistrate is not authorised to declare easementary right. But inspite of the revisional order the learned Sub -Divisional Magistrate has now passed the impugned order purportedly in the garb of an order under. Section 147, Cr.P.C. which is illegal and liable to be quashed.

(3.) HAVING heard the learned counsel for the parties and on perusal of the impugned order, it appears that the petitioner has been called upon to show cause as to why the interim order shall.not be made absolute. But a minute reference to the order indicates that the learned Sub -Divisional Magistrate has practically passed a final order in the manner, he did in the earlier occasion purportedly under Section 133, Cr.P.C., which has been set aside by the lower court as impermissible.