Krupasindhu Nayak vs State of Orissa

I. Mahanty, J.—Heard Mr. S.K. Sahoo, Learned Counsel for the Petitioner, Mr. P.S. Nayak, Learned Counsel for Opp. Party No. 2 & Mr. S.K. Nayak, Learned Counsel appearing for the State. In the present application u/s 482 Code of Criminal Procedure challenge has been made to an Order Dated 5.9.2008 passed in Misc. Petition No. 152 of 2008 by the Executive Magistrate, Kendrapara.

It appears that the present Petitioner-Krupasindhu Nayak had filed the aforesaid misc. petition u/s 145 Code of Criminal Procedure. before the Executive Magistrate, Kendrapara on his apprehension of danger from the side of Opp. Party No. 2Harihar Rout. It appears that an objection was filed by Opp. Party No. 2 & a prayer was made in the objection by the Opp. Party No. 2 to pass necessary orders for "eviction of the Petitioner from the unauthorized occupation of the shop room in question with police assistance on realization of arrear dues." This prayer for the Opp. Party No. 2-Harihar Rout appears to have been allowed by the Executive Magistrate, Kendrapara by endorsing a direction on the body of the petition itself, directing the O.I.C., Rajkanika P.S. for vacating the shop room from unauthorized occupation of Krupasindhu Nayak Petitioner therein.

These limited facts make it clear that the Executive Magistrate, Kendrapara in passing the aforesaid order has thrown all the canons of law & procedure to the wind. It clearly appears there from that the said Executive Magistrate was fully unaware of the requirement of legal process & purportedly allowed the prayer of Harihar Rout, who was the Opp. Party in the said case & directed the Petitioner''s eviction.

Nothing more need to be noted except that such an order is unknown to law & it clearly exhibits a total lack of application of judicial mind on the part of the Executive Magistrate, Kendrapara. In a proceeding u/s 145 Code of Criminal Procedure the Executive Magistrate is not only incompetent to consider a "prayer" by an Opp. Party, he does not posses any jurisdiction to direct "eviction" even assuming a tenant remains in unauthorized possession of tenanted premises. Therefore, I have no hesitation to allow this CRLMC & quash the Order Dated 5.9.2008 as well as the consequential order passed on 15.12.2008 under Annexure-5. It is made clear that Opp. Party No. 2 Harihar Rout is at liberty to initiate appropriate action before the Civil Court seeking eviction, if he so desires. The Executive Magistrate is directed to dispose of the 145 Code of Criminal Procedure. proceeding after hearing the Learned Counsel for the parties afresh in accordance with law.

Interim Order Dated 13.4.2009 passed in Misc. Case No. 921 of 2009 stands vacated.

Appeal disposed of.