Dhoiram Sahu vs Sambhu Das and Others

P.K. Mohanti, J.—This criminal revision arises out of an order passed in a proceeding u/s 145, Criminal Procedure Code.

One of the plots included in the preliminary order is plot No. 286 comprising an area of Order 98 acre out of which Order 30 acre had been purchased by opposite party No. 2 Sama Sahu by a registered sale-deed dated 23-11-1955 vide Ext. D. Both parties adversely claimed possession over the remaining 0. 68 acre of land. The entire area of 0. 98 acre was attached and kept in charge of a receiver. The Petitioner filed an application before the learned Magistrate for excluding the 0. 30 act of land from the scope of the proceedings. The learned Magistrate rejected the petition on the ground that the preliminary order having been passed in respect the entire area, it could not be amended.

A Magistrate gets jurisdiction to start a proceeding u/s 145, Code of Criminal Procedure when there is a dispute between the parties regarding possession of land which threatens to develop into use of force causing a breach of the peace. Existence of a dispute likely to cause breach of peace is the foundation of the Magistrate''s jurisdiction. It is common ground that there is no dispute with regard to Order 30 acre of land out of plot No. 286 which was purchased by opposite party No. 2 under the sale deed Ext. D. - Therefore, the learned Magistrate acted without jurisdiction in initiating the proceedings in respect of the same.

The Stamp Reporter has raised an objection that the Criminal Revision is not maintainable in view of the bar u/s 397(2) of the Code of Criminal Procedure, 1973. This Sub-section runs as follows:

The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

Apparently, this provision only bars the revisional jurisdiction, but it does not bar any other jurisdiction of this Court which is inherent and not revisional. These are two different jurisdictions. Inherent jurisdiction of this Court u/s 482, Code of Criminal Procedure remains unaffected by the aforesaid provisions in Sub-section (2) of Section 397, Criminal Procedure Code. The impugned order being without jurisdiction is a nullity and is liable to be quashed. I am fortified in this view by a Division Bench decision of this Court reported as Bhima Naik and Others Vs. State of Orissa, wherein it was held as follows:

... The Magistrate gets jurisdiction only when there is an apprehension of breach of peace. If there is no apprehension of breach of peace there is lack of jurisdiction and the preliminary order so issued will be without jurisdiction and a nullity. In such a case if Section 397(2) will be a bar, the entire proceeding would continue till it is finally found out that the Magistrate acted without jurisdiction.

It was laid down in the aforesaid decision that interlocutory orders passed without jurisdiction which constitute nullities can be interfered with in revision u/s 401 and in appropriate cases u/s 482. The objections raised by the Stamp Reporter are, therefore, overruled.

The Criminal Revision is allowed and the impugned order is quashed. The area of 0. 30 acre out of plot No. 286 as mentioned in the sale deed (Ext. D) should be excluded from the scope of the proceedings and as it is a tong pending matter, the enquiry in respect of the rest of the lands covered by the preliminary order should be completed within two months hence.'' The parties are directed to appear before the learned Magistrate on 10-1-1976. The lower Court records be returned forthwith.