S.K. Raheman Alli and Others vs State of Orissa

C.R. Cas, J.—The Petitioners & Opp. Party Nos. 3 to 8 are legal heirs of one late Lokman Alli. Opp. Party No. 2, who is the first party in the proceeding u/s 145, Cr.P.C. is claimed to have purchased the house property from late Lokman Alli, the predecessor-in-interest & the father of the Petitioners & Opp. Party Nos. 3 to 8. Civil Suit bearing No. 310 of 2005 is pending in the Court of Learned Civil Judge (Senior Division), Balasore so far as the house property is concerned. Order or status quo has been passed in respect of the disputed property. On a Misc. Petition filed under Order 39, Rules 1 & 2, Cr.P.C. in the aforesaid Civil Suit. Such interim order was challenged before this Court in vain. At-such juncture, present Opp. Party No. 2. as the first party. Initiated a proceeding u/s 145, Cr.P.C. before the Learned executive Magistrate, Balasore. The aforesaid proceeding was disposed of finding possession in favour of the first party (present Opp. Party No. 2) Learned Magistrate however did not proceed further to make an interim arrangement except deploying police force to guard the disputed property, as the matter is pending before the Civil Court Said Proceeding u/s 145, Cr.P.C. was disposed of on 26.05.2010 None of the parties challenged the order passed in that proceeding. After about one year thereafter, Opp. Party No. 2 (first party) moved the Learned Sub-divisional Magistrate in the same proceeding u/s 145, Cr.P.C. for handing over the key of the disputed house in his favour. Said petition was disposed of on 04.07.2011 with a direction for handing over the key of the building to present Opp. Party No. 2. (first Party), in the 145, Cr.P.C. proceeding for proper protection of the disputed property. The aforesaid impugned Order Dated 04.07.2011 shows that Learned Sub-divisional Magistrate has dissected the order passed by the Learned Magistrate u/s 145, Cr.P.C. as if he is acting as an Appellate forum. After disposal of the proceeding u/s 145, Cr.P.C. the Magistrate having become functious officio could not have passed the Order Dated 04.07.2011 as submitted by Learned Counsel for the Petitioners. Learned Counsel for Opp. Party No. 2 submits that the question being handing over of the key of the house alone, without affecting the rights of the parties, no fault can be found with the impugned Order Dated 04.07.2011.

A bare perusal of the impugned Order Dated 04.07.2011 shows that, in terms, the order does not come within the scope & ambit of either Section 145, 146 or 147 of the Cr.P.C. It is the settled law that no statutory authority can act beyond the statue to grant relief to an aggrieved person. Further, the proceeding u/s 145, Cr.P.C. having already been disposed of, Learned S.D.M. had no scope to review his earlier order in view of the bar u/s 362 Cr.P.C. Further, Learned S.D.M. could have asked the first party (present Opp. Party No. 2) to move Civil Court as the matter between the parties is pending there, without assuming the jurisdiction himself illegally. Regard being has to all the aforesaid facts & submissions, the impugned Order Dated 04.07.2011 passed by Learned S.D.M. Balasore in Misc. Case No 352 of 2009 u/s 145 Cr.P.C. is set aside. Opp. Party No. 2, if aggrieved, may move the competent Civil Court for possession of the key of the disputed house if such a right, he thinks, he is entitled to have.