PRATIVA MUDULI Vs. NINA ALIAS RATNAMANJARI BAL

JUDGEMENT

(1.) This revision is directed against the judgment and order dated 23-1-2003 passed by learned Sessions Judge, Cuttack in Crl. Revision No. 2/2002 directing the Executive Magistrate to convert the proceeding to one u/S. 145, Cr. P.C. and conduct an enquiry with regard to possession over a drain by either of the parties to the proceeding with some further directions with regard to repair of the drain. As it appears from the record, the dispute arose between the parties when the opp. party after construction of a two storied building in the year, 2002 tried to discharge foul water through fibre pipes on the southern side of her boundary wall to the land of the petitioners and also tried to choke the flow of the water in the drain belonging to the petitioners as a result of which the petitioners were forced to divert their drain water to the western side of their house constructing another drain. When the opposite parties tried to release the foul water from her premises to the land of the petitioners through a hole, the petitioners filed a proceeding u/S. 144, Cr. P.C. for restraining the opposite parties from releasing the foul water to the land of petitioners and not to construct any drain for release of the water on to the land of the petitioners. On the basis of such a petition, the learned Executive Magistrate passed a prohibitory order on 14-11-2002. The said prohibitory order was made absolute on 26-11-2002. Challenging the said order dated 26-11-2002 the opposite party filed a revision vide Criminal Revision No. 101/2002 in the Court of Sessions Judge, Cuttack. The Sessions Court after hearing the parties allowed the revision, set aside the order dated 26-11-2002 and remanded the case to the Executive Magistrate with a direction to make a spot visit or depute a Commission, take evidence from the parties, examine the documents and pass appropriate order in accordance with law. Pursuant to the direction of the Court of Session in the aforesaid Criminal Revision, the learned Executive Magistrate made a spot visit on 24-12-2002 in presence of local police and the parties as well as their witnesses and prepared a memorandum of spot visit. On consideration of the documents and the statements, the learned Executive Magistrate again made the prohibitory order dated 14-11-2002 absolute and restrained the opposite party from opening any out-let of drainage system to the case land and divert the same to other side which is legally permissible. Challenging the said order dated 30-12-2002 passed by the Executive Magistrate, the opposite party again filed Crl. Revision No. 2/2003 before the Sessions Judge, Cuttack. The judgment and order passed in the said revision is impugned before this Court.

(2.) Shri B. Baug, learned counsel appearing for the petitioners submitted that the prohibitory order was passed on 14-11-2002 and the statutory period of two months expired on 13-1-2002. In view of expiry of the period, the learned Sessions Judge had no jurisdiction to direct conversion of the proceeding to one u/S. 145 Cr. P.C. by judgment and order dated 23-1-2003. Several other questions were also raised by Shri Baug with regard to possession of the parties, but in my view the first question raised by the learned counsel deserves consideration. Shri Parida, learned counsel appearing for the opposite party, on the other hand, submitted that though the prohibitory order was passed on 14-11-2002, the same merged with the order dated 26-11-2002 when the prohibitory order was made absolute. The order dated 26-11-2002 was challenged before the Court of Session in Crl. Revision No. 101/2002 and the said order was quashed by the Revisional Court. The learned Magistrate after disposal of the said revision having not passed any preliminary order, it is deemed that the order dated 14-11-2002 as well as 26-11-2002 were non-existent and therefore the contention of the learned counsel for the petitioners that the two months period should be calculated from order dated 14-11-2002, cannot be accepted and deserves no consideration.

(3.) After perusal of the orders passed by the Courts below, I am of the view that this revision can be disposed of on the very first question raised before this Court with regard to jurisdiction of the Sessions Court in directing conversion of the proceeding from Sec. 144, Cr. P.C. to Sec. 145, Cr. P.C. Admittedly, a petition was filed u/S. 144 Cr. P.C. by the petitioners and on the basis of said petition, a prohibitory order was passed on 14-11-2002. The said prohibitory order was made absolute on 26-11-2002. The order dated 26-11-2002 was challenged before the Sessions Court in Crl. Revision No. 101/2002. In the aforesaid revision, the order dated 26-11-2002 was set aside and the learned Executive Magistrate was directed to make a spot visit, examine witnesses, consider the documents and pass orders in accordance with law. Pursuant to the direction of the revisional Court, the Executive Magistrate made a spot visit and complied with the other directions and again by order dt. 30-12-2002 made the prohibitory order absolute. The said order dated 30-12-2002 was again challenged before the Sessions Court in Crl. Revision No. 2/2003 and the Revisional Court set aside the said order and directed conversion of the proceeding to one u/S. 145, Cr. P.C. Section 144 sub-section (4) of the Code of Criminal Procedure prescribes that no order passed under the said section shall remain in force for more than two months from the making thereof unless the State Government considers it necessary to do so for preventing danger to human life, health or safety or for preventing a riot or any affray, and may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have expired. In view of such a provision in the section, there cannot be any dispute that no prohibitory order passed by the Executive Magistrate shall remain in force for a period of 2 months from the date it was passed.