KALI CHARAN GOUDA Vs. TARA SANKAR ACHARYA

JUDGEMENT

(1.) A proceeding Under Section 145 of the Code of Criminal Procedure, 1973 (in short, the 'Code') was directed to be dropped by the Executive Magistrate, Bhanjanagar. The said order was assailed in revision before the tearned Sessions Judge, Ganjam, Berhampur, who reversed the order and remanded the matter to the Executive Magistrate for fresh disposal.

(2.) IN the proceeding before the Executive Magistrate, the four petitioners (Kali, Kedar, Pramod and Binod), and opp. party Nos, 1 and 2 (Tara and Kumud) were members of the second party, while opp, party Nos. 3 and 4 (Biswanath and Raghunath) were members of the first party. Alleging apprehension of breach of peace, a petition was filed on 21 -3 -1984 for initiation of an appropriate proceeding by opp. party Nos. 3 and 4. By order dated 21 -3 -1984, a proceeding Under Section 144 of the Code was initiated. Subsequently a proceeding Under Section 145 of the Code was initiated on 21 -5 -1984. Case of the members of first party was that the disputed land originally belonged to one Dandapani Moharatha, who had gifted the same to Gallery High School, a few decades back. They were in possession of the suit land as tenants under the school on payment of Rajbhag, The members of the second party contested the claim on the ground that the alleged gift deed was never given effect to, and possession continued with the owner, and there was never any delivery of possession to the school. Dandapani was in peaceful possession of the disputed land till his death, and after his death his adopted son Kumud Chandra Gouda (opp. party No. 2) (second party No. 4) continued to be in peaceful possession of the disputed land. During temporary absence of Kumud, the lands were under management and possession of Kali Charan Gouda, Kedarnath Gouda, and others belonging to their family. Final patta had been issued in favour of Kumud and rents were paid from the time of Dandapani either by him or his adopted son Kumud. During pendency of the proceeding, five persons filed petitions to be impleaded as intervenors and the prayer was accepted by the Magistrate. They were impieaded as third party to the proceeding. During pendency of the proceeding, some members of the second party filed an application to drop the proceeding on the ground that the question regarding possession over the disputed land has been settled by the authorities unde the Orissa Land Reforms Act, 1960 (in short, the 'OLR Act') and the settlement authorities, and there was no scope for any further enquiry. Documents were filed in support of the respective claims and after hearing the parties, the Executive Magistrate held that the prayer to drop the proceeding was acceptable, and there was no necessity for any further enquiry in view of the documentary evidence and the orders passed by the authorities under the OLR Act, and :he settlement authorities. He also observed that there was no apprehension of breach of peace so far as subject -matter of dispute is concerned. The matter was carried in revision before the learned Sessions Judge, Ganjam, Berhampur by Biswanath Mallick (opp. party No. 3) and Raghunath Patnaik (opp. party No. 4). The revisional authority allowed the revision, with the observation that before cancellation of the preliminary order the Magistrate has to record a conclusion that no such dispute existed, when the preliminary order was passed. According to him, there was no such finding recorded by the Executive Magistrate, and mere mention that there was no apprehension of breach of peace was not sufficient. It was further observed that absence of any finding regarding non -existence of dispute when the preliminary order was passed rendered the order of Executive Magistrate illegal. He noticed that the members of the third party were not impleaded in the revisional proceeding, and no finding was recorded by the Executive Magistrate as regards their claim. Accordingly, he remanded the matter for fresh disposal.

(3.) SECTION 145(5) of the Code deals with a situation when the apprehe - nsion of breach of peace has vanished. In order to get jurisdiction Under Section 145, apprehension of breach of peace has to exist. As soon as the Magistrate is satisfied that there is no such dispute, he is bound to cancel his order made under Sub -section (1) and stay his hands. When a satisfaction is reached that there is no apprehension of breach of peace, the initial order under Sub -section (1) has to be cancelled. The Magistrate cannot thereafter go into the merits in order to give a finding as to title or possession. In Rajpati v. Bachan and Anr. : AIR 1981 SC 18, it was observed by the Apex Court that it is not necessary that the breach of peace should continue at every stage of the proceeding, unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of Sub -section (5) of Section 145 of the Code.