NITYANANDA KHAMARI Vs. RANGADHAR KHAMARI

JUDGEMENT

(1.) THE second party members in Criminal Misc. Case No. 398 of 1997 under Section 145, Criminal Procedure Code, 1 973 (in short, 'the Code') have filed this application under Section 482 of the Code challenging legality and correctness of the order dt. 27.11.1997 of the Executive Magistrate, Anandpur. The first party is the opposite party in this case.

(2.) OPPOSITE party filed the petition for action under Section 145 on the ground that he is the owner in possession of the disputed case land measuring an area of A 2.48 decs. in Mouza Kanpur under Soso Police Station in the district of Keonjhar and alleging that the Second Party members having no right, title, interest and possession, but taking advantage of entry of the name of petitioner No. 1 in the revenue records and Chakabandi record, are creating disturbance in his peaceful possession resulting in apprehension of breach of peace. Opposite party filed that petition on 31.10.1997. Learned Executive Magistrate asked for an enquiry by the O.I.C., Soso regarding existence of apprehension of breach of peace and simultaneously directed the petitioners to appear before him and to show cause with documents as to why order under Section 145 of the Code shall not be passed and the case was posted to 26.11.1997. From 26.11.1997 the case was adjourned to 23.12.1997 because of non -receipt of the S.R. Nothing was mentioned about non -availability of the Police report. On 27.11.1997 opposite party filed a petition stating about the existence of breach of peace and praying for action under Sections 145 and 146 of the Code. Learned Magistrate considered the petitions filed on that date and passed the following order.

(3.) IT is argued by learned counsel for the opposite party that the aforesaid criticism of the impugned order is non -sustainable inasmuch as learned Magistrate after being satisfied about existence of apprehension of breach of peace passed the preliminary order under Section 145(1) and thereafter order under Section 146(1) of the Code for attachment of the land so as to prevent blood -shed between the parties. No further argued that learned Executive Magistrate was neither functus officio nor he acted without jurisdiction or illegally when he advanced the case record on the petition of opposite party and passed the impugned order on 27.11.1997.