RANKANIDHI SAHU Vs. PRATAP CHANDRA DAS

JUDGEMENT

(1.) CAN a Magistrate restore a proceeding under Section 145 of the Code of Criminal Procedure (for short, the 'Code') dropped earlier by him on the ground of absence of apprehension of breach of the peace under Section 145(5) of the Code? This is the question for consideration in this revision. The application in revision has been made under Sections 397 and 401 of the Code. Mr. S. D. Dash, the learned counsel for the petitioners, who along with the opposite party Nos. 2 and 3 were the members of the second party in the court below, in the proceeding in which the opposite party No.1 was the sole member of the first party, has contended, placing reliance on the decisions reported in Kailash Chandra Panigrahi v. Gayaram Patel and two others1 and Hari Shankar and others v. Shri Bali2, that the learned Magistrate had no jurisdiction to revive the proceeding dropped by him under Section 145(5) of the Code. The opposite pVy No.1 had earlier been represented by his Advocates who submitted on 18 -1 -1983 that they had no further instructions to appear on his behalf The opposite party No.1 has not entered appearance at the hearing of this revision either personally or through any Advocate.

(2.) A proceeding under Section 145 of the Code between the parties had been drawn up on November 26, 1979. On 18 -1 -1980 the learned Executive Magistrate dropped the proceeding taking into consideration on the report of the custodian that the crop had been removed and because it appeared to the learned Executive Magistrate that there was no longer apprehension of breach of the peace. On 23 -1 -1980, on an application for restoration made by the opposite party No. 1, the learned Executive Magistrate, after hearing the opp. party No.1 whose contention was that there still existed apprehension of breach of the peace, restored the proceeding dropped by him. This order, it may be kept in mind, had been passed without notice to the present petitioners and the other members of the second party. The proceeding went on for quite sometime before the petitioners and the other members of the second party received notices after the proceeding was restored and on August 23, 1980, the petitioners made and an application stating that the proceedings was not maintainable as a proceeding once dropped could not be revived. After hearing both the sides, the learned Executive Magistrate did not accept the contention raised on behalf of the petitioners. It is thus that the matter has come to this Court for quashing the proceeding under Section 145 of the Code.

(3.) THERE can be no doubt that the order dropping a proceeding under Section 145(5) of the Code is a final order disposing of a case within the meaning of Section 362 of the Code. Once such an order has been passed, the Court cannot alter or review the same except with regard to any clerical or arithmetical error. I must, therefore, accept the contention raised on behalf of the petitioners that the impugned order restoring the proceeding, which had earlier been dropped, had been passed without jurisdiction and was in flagrant violation of the provisions of Section 362 of the Code.