PITABAS PODHAN Vs. KRUSHNA PODHAN AND 3 ORS

JUDGEMENT

(1.) OPPOSITE Parties 2 and 4 are the sons of Opposite Party 1. The petitioner (member first party) as plaintiff succeeded in a suit for declaration of title and recovery of possession in S. A. No. 052/64 which was dismissed in his favour on 11 -8-66. In pursuance of the decree, delivery of possession was effected on 2-1066. Apprehending disturbance in possession the petitioner made an application before the Magistrate that the opposite parties should be restrained from interfering with his possession of the land under Section 144, Cr. P. C. On 16-1166 an ex parte prohibitory order was passed. On 19-12-66 the learned Magistrate converted the proceeding under Section 144 into one under Section 145. Cr. P. C. The criminal revision has been filed against the propriety, of this order.

(2.) THE order of the learned Magistrate is indefensible. The matter is concluded by a series of decisions of this Court, one of which is reported in ILR (1964) Cut 182 = (AIR 1964 Ori 204), Banamali v. Baira Nahak. In a case of this nature, where recent delivery of possession has been effected through Civil Court, it is the paramount duty of the Criminal Court to see that the possession of the successful party is maintained. If there is any apprehension of breach of the peace, the unsuccessful party should be bound down under Section 107, Cr. P. C. The learned magistrate fell into a complete confusion of thought as he did not keep himself in touch with the recent development in law and converted the proceeding under section 144, Cr. P. C. into one under Section 145, Cr. P. C. The proceeding under section 145, Cr. P. C. is accordingly quashed and the learned Magistrate is directed to take action against the opposite parties under Section 107. Cr. P. C. if there is still further apprehension of breach of the peace. The order of the learned magistrate is set aside and the Criminal Revision is allowed.

(3.) ON behalf of the petitioner an application for contempt was filed to take action against the Sub-Inspector of police who was the receiver. He got the paddy harvested on 25-12-66 despite the matter having been brought to his notice that this Court had passed an order of stay. Mr. Pal however, does not press this application. It is accordingly discharged.