DHARNIDHAR SAHU Vs. MANI NAHAK

JUDGEMENT

(1.) THE members of the second party in a proceeding under Section 145, Criminal Procedure Code are the petitioners. The disputed property is said to be about 7 acres which was once upon a time a river bed. The lands are situated in the ex -State area of Keonjhar. The learned Magistrate passed the following order on 18 -9 -70:

(2.) TWO contentions are raised by Mr. Das for the petitioners. According to him the proper proceeding in this case should have been under Section 147 Criminal Procedure Code and not under Section 145 Criminal Procedure Code The members of the second party have been substantially prejudiced because the enquiry has proceeded on the basis of Section 145 Criminal Procedure Code If it was under Section 147 Criminal Procedure Code they would have the benefit of leading evidence to establish their case. It is next contended that the first order giving rise to the proceeding is not in accordance with law and as the learned Magistrate was never satisfied about the need of such a proceeding in terms of the provisions of sub -section (1) of Section 145 Criminal Procedure Code the proceeding is vitiated. According to him the existence of apprehension of breach of peace gives jurisdiction to initiate a proceeding and the absence of record of such satisfaction in the order dated 18 -9 -70 goes to the root of jurisdiction and the proceeding is vitiated.

(3.) I agree with Mr. Das that the learned Magistrate should have passed an order in terms of the requirements of sub -section (1) of Section 145 Criminal Procedure Code In view of my finding that the proper proceeding was one under Section 147 Criminal Procedure Code the utility of the preliminary order really goes. But I would not refrain from saying that the issue of the subsequent notices where satisfaction of the Magistrate has been really recorded and the submission of the members of the second party to the jurisdiction of the Magistrate in participating in the proceeding until the final stage should really be used as grounds not to permit such a contention to be raised at the belated stage.