BRAJAMOHAN NATH Vs. KESI TRIPATHY

JUDGEMENT

(1.) This revision is directed against an order dated 22.8.1983/26.8.1983 passed by the Subdivisional Magistrate, Sambalpur in Cr. Misc. Case No. 152 of 1983 which is an order under sections 145(1) and 146(1) of the Code of Criminal Procedure.

(2.) The facts leading to the passing of the impugned order are as follows: The opposite parties Nos. 1 and 2 filed a petition under section 145, Cr. P.C. before the Subdivisional Magistrate, Sadar, Sambalpur on 22.8.1983 which was registered as Criminal Misc. Case No. 152 of 1983 impleading the present petitioner and two others as members of the second party. It was alleged by the opposite parties Nos. 1 and 2 (first party before the Subdivisional Magistrate) that the members of the second party have been trying to dispossess them from the disputed land over which they are in possession. The learned Magistrate by the impugned order started a proceeding under section 145(1), Cr. P.C. and simultaneously attached the subject matter of the dispute under section 146(1) Cr. P.c. and restrained both the parties not to enter upon the disputed land till the disposal of the proceeding. He also directed the officer-in-charge, Katarbaga Police Station to appoint a Receiver and to keep the disputed land along with the standing crop, if any, in the charge of a suitable third party, not interested in either of the parties.

(3.) This revision has been filed by the first member of the second party alleging that he has title and possession in respect of the disputed properties and the preliminary order under section 145, Cr. P.C. as well as the order of attachment is without any legal justification. It has also been alleged that the members of the first party who are opposite parties Nos. 1 and 2 in this revision have filed Title Suit No. 60 of 1982 in the court of the Subordinate Judge, Sambalpur against the present petitioner and 9 others praying for declaration of their right, title and interest over the disputed lands along with their sister Indira, who is not a party to this revision. They have also prayed for permanent injunction against the petitioner and other defendants in the said suit. Their further contention is that the present opposite parties Nos 1 and 2 having not moved the civil court for an order of interim injunction or for appointment of a Receiver, their move for an order under section. 145(1), Cr. P.c. is thoroughly misconceived. According to them the order under section 145(1) Cr. P. C. as well as under section 146(1), Cr. P.C. could not have been passed by a composite order and at any rate, the learned Magistrate has passed the said order mechanically without application of judicial mind.