NITYANANDA SENAPATI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application by the 1st party in a proceeding u/s. 145, Cr. P.C. invoking the inherent power of the Court.

(2.) On 9-9-1987, a proceeding u is. 144, Cr. P.C. was initiated and the enquiry report of the Police in respect of Ac.0.83 decimals of land in Plot No. 597. On the petition of the member of the 2nd party, the proceeding was converted to one u/s. 145, Cr. P.C. and a preliminary order was passed in respect of the aforesaid land on 30-10-1987. Land was also attached. Service return was directed to be returned by 19-11-1987. Before that date on 17-11-1987, member of the 2nd party prayed to describe the boundary of the said Ac.0.83 decimals of land which was accepted. On 21-11-1987, an application was again filed by 2nd party without copy of the same being served on the 1st party to amend the area to 2 acres 56 decimals which is the actual area in dispute. Learned Magistrate having ex parte passed the order accepting the prayer and directing the receiver to take charge of the property. This order was assailed by the 1st party in revision before the learned Additional Sessions Judge on the ground that the property in dispute has been jointly recorded and initiation of the proceeding is against the decision reported in (1987) 2 Orissa LR 534 (Purna Chandra Biswal v. Brindaban Biswal). The order of attachment was stayed. However, the learned Additional Sessions Judge ultimately did not interfere with the order against which an application was filed in this Court where it was urged that there is no scope for adding more lands and that too ex parte. Without interfering with the order of the trial court and of the learned Sessions Judge since such a question did not appear to have been considered by both the forums, I gave liberty to the petitioner to move the trial court for recalling the order dt. 21-11-1987. Learned Magistrate having refused to recall the order on the finding that the order has been confirmed by the learned Sessions Judge and the parties are at daggers drawn which is likely to result in rioting and breach of peace, petitioner has again approached this Court.

(3.) Normally, in matters of initiation of proceeding u/s 145, Cr. P.C. revisional powers are not to be exercised since question of apprehension of breach of peace is involved which is to be prevented by the Magistrates. Keeping the same in view, I gave liberty to the petitioner to move the trial court to recall the order. When this Court gave liberty to move the trial court, it ought not to have felt bound by the order of the learned Addl. Sessions Judge, who did not consider the question of ex parte order without service of copy of the petition on the Advocate for the petitioner and added some more properties. Order of the trial court in vulnerable on the ground of violation of principle of natural justice.