RABINARAYANA RANA Vs. GOPAL RANA AND ORS.

JUDGEMENT

(1.) THIS revision is by the member of the first party in a proceeding under Section 145, Code of Criminal Procedure, challenging the order of the Magistrate dated 22.7.1987. The order of the Magistrate reveals that a proceeding under Section 144, Code of Criminal Procedure, had been initiated on the application filed by the first party on 22.6.1987 and notice being issued to the opposite parties one of the opposite parties entered appearance and filed an objection. On 22.7.1987 on perusal of the assertions made in the application as well as in the objection filed by the said opposite party the learned Magistrate came to the conclusion that there was a dispute over possession of the land in question, but having found so, instead converting the proceeding to one under Section 145 of the Code of Criminal Procedure, and directed that the parties may approach the Civil Court establishing their rights.

(2.) MR . Sahu, the learned Counsel appearing for the Petitioner, contends that in course of a proceeding under Section 144, Code of Criminal Procedure, if the Magistrate comes to the conclusion that there is dispute over possession of the land in question, then he has a duty to convert the proceeding to one under Section 145 of the Code instead of dropping the same. In support of the said contention reliance has been placed on the decisions of this Court in Hadu Khan and Ors. v. Mahadev Das and Ors. : A.I.R. 1968 Ori 221 and Parama Nanda Mohanto and 3 Ors. v. Siba Ch. Mohanto and 4 Ors. : 39 (1973) C.L.T. 1338. There is no dispute over the proposition that the Magistrate in course a proceeding under Section 144 of the Code of Criminal Procedure if comes, the conclusion that there is scramble for possession or dispute regarding possession over the land in question, then the Magistrate should convert the proceeding to one under Section 145 of the Code and should take steps so that the apprehension of breach of peace can be avoided. But at the same time, even after the dropping of the proceeding by the Magistrate, there is no bar for either of the parties to approach the Magistrate invoking his jurisdiction under Section 145(1) of the Code of Criminal Procedure. The impugned order in the present case has been passed in July, 1987. It is not known whether there is still any continuance of apprehension of breach of the peace in respect of the land question. In that view of the matter, even agreeing with the submission made by Mr. Sahu for the Petitioner, I do not think it appropriate to direct for conversion of the proceeding to one under Section 145 of the Code of Criminal Procedure. I would, however, observe that it is Open to the Petitioner to invoke the jurisdiction of the Magistrate under Section 145 if the Petitioner still feels that there is apprehension of breach of peace in respect of possession of the land in question and I have no doubt my mind that if the Petitioner satisfies the Magistrate with materials that the pre -conditions for issuance of an order under Section 145 were satisfied then the Magistrate would take such action as deemed fit in accordance with law.