KANDA RADHAKRISHNA AND ANR. Vs. SUNAMUDI SOMBARU

JUDGEMENT

(1.) THIS is a revision filed by the 2nd party against a final order under Section 33, Code of Criminal Procedure passed by the Sub -Divisional Magistrate, Gunupur directing them to remove obstructions on the mouth of the sub -channel known as "Pilamasani Batia". On the application of the opp. party, proceedings under Section 133, Code of Criminal Procedure were started in M.C. No. 37 of 1964 and the usual notice was served on the Plaintiffs. Plaintiffs in response to the said notice entered appearance and put in a counter denying the existence of the public channel or creation of any obstruction by them. After receipt of the counter, the learned Sub -Divisional Magistrate passed an order on 11 -12 -1964 for holding an enquiry under Section 139 -A, Code of Criminal Procedure. The said S.D.M. was transferred. His successor without complying with the requirements of Section 139 -A, Code of Criminal Procedure, proceeded to pass the summary order presumably under Section 137, Code of Criminal Procedure, after examining the Tahsildar of Bisam cuttack and exhibiting the record in Misc. Case No. 9 of 1904 making the conditional order dated 7.8.1964 absolute. This order is challenged mainly on two grounds. Firstly, it is contended that the procedure adopted by the learned Magistrate before passing the final order is patently illegal, and secondly, even assuming that the learned Magistrate passed the order under Section 137, Code of Criminal Procedure, he has failed to take evidence as in a summons case according to the procedure laid down in Chapter XX of the Code.

(2.) IT is well settled that in a case which comes within the purview of Section 139 -A, Code of Criminal Procedure, it is obligatory on the Magistrate first to hold an enquiry as laid down therein before he proceeds under Section 137, Code of Criminal Procedure. Section 139 -A, Code of Criminal Procedure contemplates:

(3.) FOR the aforementioned reasons, I allow the revision, set aside the final order of the learned Magistrate dated 5 -5 -1967, restore the proceeding to the stage at which it was on 11 -12 -1964 when an order was passed to hold an enquiry under Section 139 -A, Code of Criminal Procedure and direct the Magistrate to proceed with the case and dispose it of according to law. As the matter is pending for a long time, further proceedings should be expedited.