SUSHIL KUMAR TRIPATHY Vs. PRAVATI DASH

JUDGEMENT

(1.) The present petitioner is one of the 2nd party members in a proceeding under section 145, Cr. P.C. in the court of the Sub-Divisional Magistrate, Bargarh numbered as Criminal Misc. Case No. 97 of 1989. In the present petition, the petitioner has challenged the legality of the order of the learned S.D.M., Bargarh dated 29.2.1992 passed in the said criminal misc. case wherein the learned Magistrate concluded that the dispute being of civil nature, the parties are advised to resort to civil proceeding if so like while directing the attachment dated 6.6.1989 to continue till otherwise ordered by any competent authority and with such direction has disposed of the proceeding.

(2.) Section 145 and section 146, Cr. P.C. in the 1973 Code read as follows:

(3.) It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under sections 145 and 146, Cr. P.C. After passing of the preliminary order an attachment may be affected under section 146 of the 1973 Code if the Magistrate considers the case to be one of emergency while the attachment may be made subsequently under two other limbs of the section at the final stage of the proceeding initiated by the preliminary order. Under sub-section (4) of section 145, a duty is cast on the Magistrate to peruse the written statements of the parties to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession, he is to make a final order in the manner provided under sub-section (6) of the said section. But if the Magistrate is unable to decide as to which of the parties was in possession or where he is of the view that neither of them was in possession, he may pass an order of attachment of the subject matter of the dispute under section 146 of the Code until determination of the rights of the parties by a competent court. The scheme of sections 145 and 146 of the Cr. P.C. is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issued a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. After perusing the statements and considering the evidence that is laid, the Magistrate decides which of the parties was in possession on the date of passing of the preliminary order. When there is a decision by him that one of the parties was in possession, he declares the possession of that party. But in other 2 situations as indicated above, he attaches the property. A proceeding thus begun with a preliminary order must be followed by an enquiry and end with the Magistrate deciding in one of the three ways nearly: