BANAMALI MOHANTY Vs. DOLAGOVINDA DAS

JUDGEMENT

(1.) The question that falls for determination in this case is whether during pendency of a proceeding under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, the Consolidation Act) initiation of a proceeding under section 145 of the Code of Criminal Procedure was bad.

(2.) The first party in the proceeding under section 145, Cr. P.C. (Criminal Misc. Case No. 48 of 1991) has filed this revision petition under sections 397 and 401, Cr. P.C. challenging the order dated 12.11.1991 of the Executive Magistrate, Jajpur dropping the proceeding and leaving it to the parties to agitate the dispute regarding right, title, interest coupled with possession over the disputed land before the proper forum for decision.

(3.) The factual backdrop of the case necessary for appreciation of the point formulated earlier may be stated thus: On perusal of the report of the Officer-in-charge, Jajpur Police Station and on being satisfied that there was likelihood of breach of peace between the parties, the learned Executive Magistrate, Jajpur registered Criminal Misc. Case No. 48 of 1991 and passed the preliminary order initiating the proceeding under section 145, Cr.P.C. on 13th February, 1991. In the said proceeding the petitioner was shown as the first party and the opp. parties were shown as members of the second party. As revealed from the discussions in the impugned order, in response to the notice issued by the learned Magistrate, the opp. parties-second party appeared and filed their written statement on 26.2.1991. On the application filed by the petitioner-first party on 23.2.1991 under section 145 (8), Cr. P.C. the learned Magistrate by order dated 23.3.199 1 appointed the local R.I. as receiver. The case was taken up for hearing on 20.9.1991; one Laxmidhar Mohanty (P.W. I) and the petitioner Banamali Mohanty (P.W.2) were examined and cross-examined. At that stage on 24.10.1991 the Advocate for the second party filed a petition challenging maintainability of the proceeding under section 145 Cr.P.C. mainly on the ground that consolidation proceeding in village Bandhamunda had been initiated in pursuance of the Gazette Notification dated 28.10.1988 of the Revenue and Excise Department and, therefore, the proceeding under section 145, Cr. P.C. was liable to be dropped. On consideration of the said objection the learned Magistrate passed the impugned order, accepted the objection raised by the opp. parties-second party and dropped the proceeding.