BAIDHAR BEHERA Vs. DIBYASINGHA SAHU

JUDGEMENT

(1.) THIS is an application for a writ of certiorari at the instance of the three petitioners who were members of the first party in a proceeding under Section 145 of the Code of Criminal Procedure.

(2.) THE preliminary order under sub -section (1) of Section 145 of the Code was drawn up on 26.07.1968. The disputed property with an area of 3 acres appertains to plot numbers 1000 and 1000/ 1889. On 14.1.1969, a third party laid claim and on his own petition was added. The preliminary order, however, was not altered by the learned Magistrate nor was a fresh order drawn up. The learned Magistrate was unable to decide as to which of the parties was in possession on the date of the preliminary order. Accordingly he referred the dispute to the Munsif having territorial jurisdiction for determination of the dispute as provided under Section 146 (1) of the Code. Before the Munsif no further evidence was offered. On the basis of the affidavits and documents placed by the parties before the Magistrate, which had been forwarded to the Munsif, the learned Munsif decided that the members of the second party were in possession of plot No. 1000 with an area of 2.15 acres and plot No. 1000/ 1889 with an area of 0.79 decimals. On his finding being sent to the Magistrate, the Magistrate passed an order in terms of Section 146 (1 -B) of the Code.

(3.) RELIANCE is placed on behalf of the petitioners upon a decision of the Patna High Court in the case of Raja Singh v. Mahendra Singh AIR 1963 Patna 243 : (1963 (2) Cri. LJ 25) (FB) where in a similar case it was held that the High Court in exercise of powers under Article 227 of the Constitution has jurisdiction to interfere and set right illegalities. It is well settled by now that the extraordinary jurisdiction conferred under the Constitution cannot be curtailed or taken away by any statutory provision. Therefore, Section 146 (1 -D) of the Code of Criminal Procedure can certainly not override the constitutional provision contained in Articles 226 and 227.