BIRAMANI SAHU AND ORS. Vs. PAREMESWAR KUAR

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge of Bolangir recommending the quashing of a preliminary order under Section 145, Code of Criminal Procedure drawn up by the learned Sub -Divisional Officer and Magistrate, First Class, Sonepur on 30 -111968 in Criminal Case No. 117 of 1968. As it appears, the second party was the decree -holder and the first party the judgment -debtor in a civil action. In the civil Court a decree was obtained, execution was levied (Execution Case No. 6 of 1963) and ultimately delivery of possession of the disputed properties was taken. A part of the decretal dues still remains unsatisfied and the execution proceeding is still continuing in which the decree -bolder second party has taken action to proceed against the person of the judgment -debtor. In the said proceeding an affidavit was filed by the first party judgment debtor on 9 -3 -1968 wherein there was an admission that the lands of the judgment -debtor which had been sold in Court auction had been purchased by the decree -holder and he had taken over possession.

(2.) AN application under Section 144, Code of Criminal Procedure was filed before the learned Magistrate. In the said application the first party did not disclose that there had been a civil proceeding and in the execution case delivery of possession of the disputed properties had been taken through Court by the decree holder second party. The learned Magistrate ultimately by his order dated 30 -11 -1968 converted the proceeding into one under Section 145, Code of Criminal Procedure and drew up the impugned preliminary order.

(3.) CERTAIN documents were received by the learned Sessions Judge and he has utilised the contents of these documents for drawing up his recommendation to this Court for quashing the preliminary order.