SANKALI DEHURI Vs. STATE OF ORISSA

JUDGEMENT

(1.) G . K. Misra, On 8th April, 1972 a proceeding under Section 107, Criminal Procedure Code was initiated by the Sub -divisional Officer, Talcher, against 87 persons of village Olanda including the petitioners on a report submitted by the Officer -in -charge of Kanhia P.S. They were made second party in the report and four persons of village Denali were made the first party. The Officer -in -charge recommended that a proceeding under Section 107. Criminal Procedure Code is to be taken only against the villagers of Olanda as they threatened to harass the villagers of Denali if the latter entered Chingudinali jungle of Olanda village and a portion of Gudianali jungle which the villagers of Olanda claimed to be a part of Chingudinali jungle for grazing or cutting fuel. Notices were issued under Section 112, Criminal Procedure Code against the villagers of Olanda to show cause. The case of the villagers of Olanda is that they have exclusive right of user of Chingudinali jungle for grazing and other purposes and the villagers of Denali have no right to enter into their forest for grazing in course of which their cattle destroy the crops of the villagers of Olanda. The villagers of Olanda are exercising their lawful rights in preventing any trespass by the villagers of Denali into their forest. They took the stand that if the villagers of Denali claimed; any right of user of the village forest of Olanda, the proper proceeding would be one under Section 147, Criminal Procedure Code They further contended that even if a proceeding under Section 107, Criminal Procedure Code was initiated it should have been initiated against the villagers of both the villages. The impugned proceeding only against the villagers of Olanda had the effect, of allowing the villagers of Denali to freely enter into the village forest of Olanda with their cattle for grazing and also to cut fuel therefrom causing loss to the villagers of Olanda.

(2.) THE learned Magistrate passed an order on 5.10.1972 directing all the 76 members of the second party to execute an interim bond of Rs. 500/ - with one local surety for the like amount each to keep peace under Section 117(3). Criminal Procedure Code till the conclusion of the enquiry under Section 107, Criminal Procedure Code It is against this order that the criminal revision has been filed.

(3.) IT was also pointed out in that case that even if a Magistrate starts a proceeding under Section 107 of the Code though more appropriately he should have started a proceeding under Section 147 of the Code, he should initiate the proceeding under Section 107 of the Code ordinarily against both and not against one of the parties. Otherwise the party against whom no proceeding is started would be hi an unfair advantage over the other party. There is an exception to this rule that where the claim of one of the parties is a mere pretence, then a proceeding under Section 107 of the Code can be started only against that party.