Gouri Sankar Sahoo and Others vs Sabyasachi Mohapatra

P.K. Tripathy, J.—Petitioners are the 2nd party members in Criminal Misc. Case No. 54 of 2003 of the Court of Sub-Divisional Magistrate, Panchpir, Karanjia and the Opp. Party is the 1st Party in that proceeding. For the sake of convenience, hereinafter they are referred to as 2nd party and 1st party respectively. The 2nd party No. 1 is the Secretary of Karanjia Athletics Association and the other two 2nd party members are its lessee on the constructed shop room situated over Ac. 0.01 decimal out of Ac. 0.15 decimals of Plot No. 1217 under Khata No. 146.

The 1st party filed application u/s 144, Code of Criminal Procedure to restrain the 2nd party members from forcibly occupying the above noted disputed plot besides Plot No. 1218 on the ground that Plot Nos. 1217, 1218 &1219 under Khata No. 146 have been recorded in the name of Karanjia Town Club and the 2nd party members by showing seer high-handedness, connived to forcibly trespass and possess that property on the basis of lease agreement between the 2nd Party No. 1 individually with the other two 2nd Party members, that 2nd Party Nos. 2 & 3 (Ashok Kumar Sahoo and Ramaratan Mohanta) forcibly constructed and occupied the shop rooms. On receipt of that application and persuing report of the Inspector in-charge of Karanjia Police Station and finding existence of imminent breach of peace, on 9.4.2003 learned S.D.M. passed ex parte prohibitory order prohibiting both the parties to possess the case land. The 2nd Party members claimed right over the property on the basis of lease agreement. The 1st Party members on 26.5.2003 filed an application to convert the proceeding to one u/s 145, Code of Criminal Procedure and to pass order for attachment u/s 146 (1), Code of Criminal Procedure The 1st party also filed application to initiate proceeding u/s 188, Code of Criminal Procedure against the 2nd Party members for possessing the shop room even after promulgation of prohibitory order. It may be noted here that learned S.D.M. declined to take action u/s 188, Code of Criminal Procedure on the flimsy ground taken and canvassed before him that the prohibitory order was not properly served on the 2nd Party members. After making appearance in the case, the 2nd Party members became aware of the prohibitory order and, therefore, the prohibition to possess the land was at least applicable to them from that day. Be that as it may, since the 1st Party has not challenged that order (dropping the proceeding u/s 188, Code of Criminal Procedure), therefore, this Court does not express any further opinion in that matter.

After hearing the parties, on 6.6.2003 learned S.D.M. passed order converting the proceeding to one u/s 145, Code of Criminal Procedure and simultaneously ordered for attachment u/s 146(1), Code of Criminal Procedure and appointed a receiver for the said shop rooms in accordance with provision under Sub-section (2) of Section 146, Code of Criminal Procedure It is after that order that the 2nd Party members have filed this application u/s 482, Code of Criminal Procedure with the prayer to quash the Criminal Misc. Case No. 54 of 2003. Though several grounds have been taken in the application u/s 482, Code of Criminal Procedure, but at the time of hearing they challenged to the order of initiation of the proceeding, the order for converting the proceeding precisely on two grounds, viz. the order of initiation of the proceeding is illegal and the S.D.M. being the S.D.O. (Sub-Collector) and in that capacity he being the ex-officio President of Karanjia Town club (1st Party), therefore, the said Presiding Officer should not be the Judge in his own case. In support of such argument, 2nd Party relied on the case of Kshirod Ch. Sahu v. Executive Magistrate Sadar Cuttack and Ors. (1996) 10 OCR 431 and Arjuna Charan Mishra Vs. State Bank of India and others, .

1st Party on the other hand argued that challenge to the initiation of the proceeding u/s 144, Code of Criminal Procedure is an after thought of the 2nd party inasmuch as 2nd party submitted to the jurisdiction of the S.D.M. from 16.4.2003 on which date they appeared and thereafter, they appeared and participated in the proceeding on subsequent dates and only after the order was passed on 6.62003 that the 2nd party members have approached this Court. 1st Party further argued that on the face of existence of land dispute and apprehension of breach of peace arising there from between the parties, learned S.D.M. did not commit any illegality by initiating the proceeding u/s 144, Code of Criminal Procedure and converting it to a proceeding u/s 145, Code of Criminal Procedure The 2nd Party further argued that it is evident from Annexure-5, i.e. the letter of the Sub-Collector addressed to the Secretaries of Town Club and Karanjia Athletics Association that the said officer is the ex-officio President of both the Associations and under such circumstances, bias cannot be attributed against him when he is similarly positioned with respect to both the associations. Learned Counsel for the 1st Party further argued that at the stage of initiation of the proceeding, learned S.D.M. exhibited his impartiality by issuing ex parte prohibitory order against both the parties. Learned Counsel for the 1st party also stated that such a ground was never raised in the Court below by the 2nd Party but the 1st party has no objection if the proceeding is considered by any other Magistrate of competent jurisdiction.

In the case of Kshirod Ch. Sahu (supra) after disposing of a proceeding u/s 144, Code of Criminal Procedure on a subsequent date, that order was modified by learned Executive Magistrate. Discussing the position of law, this Court has said that such an order is null and void because after disposal of the proceeding u/s 144, Code of Criminal Procedure, and when the order u/s 144, Code of Criminal Procedure had already spent its force learned Magistrate had no jurisdiction to rescind or modify such final order Such an issue is not involved in this case. On the other hand, it transpires from the preliminary order as well as the different orders including the order dated 6.6.2003 that learned S.D.M. judiciously considered the facts and submissions of both the parties to arrive at a factual conclusion for initiation of the proceeding u/s 144, Code of Criminal Procedure at the initial stage and for converting the proceeding on 6.6.2003 along with the consequential orders relating to attachment and appointment of receiver. When both the parties assert their title and possession over the disputed land, contention of the 2nd Party, regarding possession since long on the basis of N.A.C. receipt and approval of the plan for construction of the shop room does not oust the contention of the 1st Party in limine and evidence, if adduced, are to be considered by learned Magistrate in course of adjudication of the dispute u/s 145, Code of Criminal Procedure After perusal of the different orders passed by the Court below, this Court finds no illegality or jurisdictional error in such orders so as to invoke the inherent power to quash the criminal proceeding.

In the above context, as noted above, the contention of the 2nd Party is that the S.D.M.-cum-Sub Collector, is the ex-officio President of the Karanjia Town Club (1st Party) and therefore, he should not be the Judge of his own cause. As noted earlier, it reveals from Annexure-5, that the Sub-Collector is the ex-officio President of Karanjia Town Club and also the Athletics Association, both of whom are fighting the present litigation. Under such circumstances, the ratio in the case of Arjuna Charan Mishra is not available to the present case. Be that as it may, it is open to the 2nd party to move application u/s 411, Code of Criminal Procedure before the S.D.M. to make over the case to any Magistrate or before the District Magistrate to pass such order. On filing of such application, if any Magistrate competent to hear such case is available, then the S.D.M. or the District Magistrate, as the case may be may allow such application so as to remove the apprehension in the mind of the 2nd party provided such an application is moved within one month hence.

With the aforesaid observation, this Court finds no reason to quash the Criminal Proceeding which should reach to its logical conclusion. At the same time, this Court observes that since this is a dispute between two Associations, efforts may be made by the S.D.M. for an amicable settlement, if that is possible.

The Criminal Misc. Case is accordingly dismissed.

Criminal Misc. Case dismissed.