NIHURA NAYAK Vs. KRUSHNA CHANDRA NAYAK

JUDGEMENT

(1.) A learned single Judge has referred for decision by a larger Bench the question as to whether, while examining a matter under Section 482 of the Code of Criminal Procedure ("the Code", for short), a receiver can be appointed, when pursuant to the order passed by the Magistrate in a proceeding under Section 14, Cr. P.C., possession of the land has been delivered to the person in whose favour the proceeding has terminated. The reference owes its origin to the fact that another learned single Jude of this Court in Markenda v. Balaram, 1990 (1) OLR 58, held that a receiver can be appointed by the High Court while in seisin of the matter Section 482, Cr. P.C., though the same power should be exercised very sparingly and in exceptional circumstances, only to do real and substantial justice. The learned single Judge before whom the present revisions came, however, noted a number of decisions rendered by other High Courts of the country, the view taken in which appeared to be different from the one taken in Markanda's case. As there is no Division Bench decision of this Court on this point, it was felt desirable that the point should be settled by a Bench.

(2.) At one stage, in the Code of Criminal Procedure of the country, there was no specific Section conferring inherent power on the High Court, and so, some of the High Courts examined the question whether in the absence of specific provision, such a power can be exercised, and answered the question in the affirmative. There is no necessity to refer to these cases to which our attention has been invited by Shri Misra, as in the Code of Criminal Procedure. 1973, Section 482 has specifically conferred this power and as we are concerned in this proceeding with the power under Section 482, those cases have no relevance.

(3.) Section 145 Cr. P.C. confers power on an Executive Magistrate to decide the dispute concerning land or water when the same is likely to cause breach of peace. In Bhinka v. Charan Singh, AIR 1959 SC 960 : (1959 Cri LJ 1223) it was held that the foundation of the jurisdiction of the Magistrate is an apprehension of breach of peace, and to avoid, the same, the Magistrate makes a temporary order irrespective of the rights of the parties, which have to be agitated and disposed of in the manner provided by law. As such, everything that can be done or should be done must have its relation with the apprehension of peace. As maintenance of peace is primarily the duty of police, orders in the proceeding of the present nature were described as "police orders" in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani (1991-02) 19 India Appeals 24, by the Privy Council.