DEKI KUNDANAM Vs. BANDAM MAHALAXMI

JUDGEMENT

(1.) First Party in a proceeding under section 145, Criminal Procedure Code is the petitioner in this Criminal Revision assailing the order dated 19.3.1987 cancelling the preliminary order by the Executive Magistrate in exercise of power under section 145(5/, Cr. P.C. and thereupon dropping the proceeding.

(2.) On the basis of an application with two affidavits and documents filed by the petitioner, a proceeding under section 145, Cr. P.C. was initiated and preliminary order was passed on 14/6/1985. The house in dispute was attached and was kept in custody of the Officer-incharge of the Police-station. After both the parties filed their written statements, the case was posted for enquiry. At that stage members of the second party filed an application for exercise of power under section 145 (5) Cr. P.C. By order dated 6/12/1985 after hearing both parties, the petition of the second party was rejected and parties were directed to produce witnesses. On 18/1/1986, P.W. 1 was examined whose examination-in-chief was completed on 23/1/1986.

(3.) When the case was being adjourned from date to date and 2nd party had not yet cross- examined P.W. 1, a petition was again filed on 13/11/1986 on their behalf for second party for dropping the proceeding. Case of the second party in that petition is that on the death of one D. Guru Murty Subudhi, the Sub-divisional Magistrate, Berhampur was moved by them for assistance to take delivery of the possession of the house in question and on the basis of an order on such petition dated 1/6/1985, possession has already been taken on the next day ie. 2/6/1985. An application for restoration of possession had been filed by the widow and daughter of deceased Guru Murty and for punishing the members of the second party for contempt having taken possession when the property was under attachment. Criminal revision was also filed before the learned Sessions Judge, Berhampur against the order dated 1.6.J985 and the said revision has been dismissed on 14/7/1986. In view of the aforesaid order in revision, the delivery of possession having stood of firmed, the proceeding under section 145, Cr. P.C. would be no more maintainable. First Party resisted the aforesaid petition for dropping the proceeding on the ground that the possession forcibly taken from the Police cannot be a ground to drop the proceeding when the learned Sessions Judge made the following observation while dropping the proceeding. The order in question passed by the Magistrate dated 1.6.1985 was strictly speaking not a judicial order in any legally constituted proceeding so as to attract the revisional powers of this court to be interfered with and as such the revision is not tenable. The revision filed on as such is dismissed. The 1st party claimed that the proceeding which is part-heard cannot be dropped till the evidence on both the sides is recorded and the case is heard in full.