ABADHUTA BISWAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) - The members of second party in a proceeding under Sec. 133, Code of Criminal Procedure have filed this revision challenging the legality of the order dated 26th November 1997; making the conditional order dated 14-10-1997 absolute and thereby directing the second party members to remove the trees standing on the disputed land.

(2.) IT is not necessary to notice in detail the facts. Suffice it to say that after a notice under Sec. 133(1), Cr. P. C. was served on the present petitioners a written statement was filed denying the allegations made in the petition of the first party on the basis of which the proceeding under Sec. 133. Cr. P.C. had been started. The scheme of the provisions contained in Part-B of the Chapter X of the Code of Criminal Procedure indicates that after making a conditional order under Sec. 133 (1), the said order may be served on the person against whom it is made. Sec. 135 envisages that the person against whom such order is made shall comply with the direction or may appear in accordance with the said order and show cause against the same. In the present case there is no dispute that the second party members, pursuant to the said conditional order appeared and filed their she my cause denying the allegations. The procedure thereafter is contemplated in Sec. 138 and as such the Magistrate is required to take evidence in the matter as in a summons case and to decide the matter thereafter. This position is clear on a conjoint reading of Sees. 137 and 138 as well as the decision of this Court reported in Palau Dehury and others v. Sarat Chandra Patra and others. Admittedly in the present case, the Magistrate has not followed the procedure indicated in Sec. 138. Cr. P.C. As such the order passed by the Magistrate cannot be sustained. The impugned order is therefore, set aside and the matter is remanded to the Magistrate to proceed in accordance with law after following the procedure contemplated in Sec. 138 Cr. P.C. IT is made clear that the matter shall be decided in accordance with law on the basis of materials on record without being influenced by any observations made by the Magistrate in the impugned order dated 26th November, 1997. The parties are directed to appear before the Magistrate on 16th November, 1998. The Criminal Revisions is according allowed. Revision allowed. Matter remanded.