BHAGABAN NAYAK Vs. UCHHAB NAIK

JUDGEMENT

(1.) Members of the first party in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') are the petitioners. In this application they have challenged the order of the learned Sessions judge dated 21 -11 -1980 in Criminal Revision No. 116 of 1980 holding the order of the Magistrate dated 8 -7 -1980 directing issue of writ of delivery of possession to be without jurisdiction.

(2.) THE facts of the case, so far as relevant in the context of the present dispute, may be briefly stated. On the report of the Officer -in -charge, Kanpur Police Station, a proceeding under Section 144 of the Code was initiated by the learned Executive Magistrate, Narasinghpur, by his order dated 20.10.1971 issuing notice to both parties restraining them from entering upon the disputed land asking them to show cause as to why the order should not be made absolute against either of them. After the parties filed their show cause and documents in sup port of their respective claims, the learned Magistrate came to the conclusion that each party was claiming to be in possession of the land and, therefore, converted the proceeding to one under Section 145 of the Code by issuing a preliminary order under Section 145(1) and attaching the property by order dated 9 -11 -1971. The attached land was put to auction. Pursuant to the notice issued under Section 145(1) of the Code, the parties filed their respective written statement as well as documents in support of their claim of possession. On consideration of the evidence adduced before him, the learned Magistrate dropped the criminal proceeding by order dated 12 -1 -1973. This order of the learned Magistrate being challenged in Criminal Revision No. of 1973, this Court by order dated 1.11.1973 set aside the order of the Magistrate and directed to dispose of the proceeding in accordance with law. - - After the records were received by the learned Magistrate from the High Court, the learned Magistrate re -heard the parties and by order dated 13 -8 -1974 came to the conclusion that he was unable to decide as to which party was in possession of the disputed land on the date of the preliminary order or two months prior thereto and, therefore, he referred the matter to the Court of the Munsif under Section 146 of the Code for determining the question of possession. The learned Munsif thereafter proceeded with an enquiry under Section 146 of the Code and by his order dated 25 -9 -1975 gave a finding that Krushna Nayak of the second party along with all the first party members except Bhagaban Nayak, Bhaunsi Nayak and Kanhu Nayak were in possession of the disputed land on the date of the preliminary order. After receiving the said finding, the learned Magistrate passed final order on 10 -10 -1975 declaring possession of the first party members as well as Krushna Nayak of the second party in accordance with the finding of the learned Munsif. This order of the learned Magistrate was challenged before the learned Sessions Judge in Criminal Revision No. 4 of 1975 at the instance of the second party members, but the same was dismissed on 16 -1 -1978. It may be noted that notwithstanding the final order dated 10 -10 -1975 of the learned Magistrate declaring the possession of the first party, the attachment order which had been issued while initiation of the proceeding had not been lifted. On 5.7.1979, an application was filed by the first party members for lifting the order of attachment and for giving delivery of possession in accordance with the earlier decision of the learned Magistrate. On 8.7.1980, the learned Magistrate passed an order for issue of writ of delivery of possession in accordance with the order of the Civil Court dated 25 -9 -1975 through the Officer -in -charge of the concerned police station. This order of the learned Magistrate was challenged before the learned Sessions Judge by the members of second party and the learned Sessions Judge by the impugned order has set aside the said order of the learned Magistrate on the ground that there is no provision in the Code authorising a Magistrate to issue a writ of delivery of possession after passing final order in a proceeding under Section 145 of the Code declaring possession of a party to the proceeding.

(3.) COMING to the second submission of the learned counsel for the petitioners, though there is no specific provision in the Code authorising a Magistrate to issue an order of writ of delivery of possession, yet there is also no prohibition in the Code in that respect. The proviso to Sub -Section (4) of Section 145, on the other hand, authorises a Magistrate if he comes to the conclusion that any party has been wrongfully and forcibly dispossessed within two months before the date of the preliminary order, to treat that party as if he was in possession on the date of the preliminary order and under Sub -Section (6)(a) of Section 145 of the Code, the Magistrate has the power to restore possession in favour of the party who has been forcibly and wrongfully dispossessed In the present case, in view of the findings of the learned Magistrate though the provision of Section 145(6)(a) of the Code does not apply in terms, yet, the spirit of the said provision will have full application. The possession of the first party members has been declared in the final order passed by the learned Magistrate under Section 145 of the Code. The land was under attachment and the said attachment order had not been lifted. At any rate, in the ends of justice, if the Magistrate passes an order directing issue of a writ of delivery of possession in favour of the successful party in the 145 proceeding, it cannot be said that such an order is without jurisdiction or non est in the eye of law. In the facts and circumstances of the present case, I am of the view that the Magistrate was entitled to pass the order dated 8.7.1980 and Mr. Misra's contention on this score must prevail. In the premises to allow the order of the learned Sessions Judge to remain in force would be an abuse of process of law and would not be in the interests of justice.