Sri Gandharba Naik and Others vs Bisu Raj

Heard learned Counsel for the Petitioners and the learned Counsel for the opposite party.

This application u/s 482, Code of Criminal Procedure is directed against the order passed by the Sub-Divisional Magistrate, Bhubaneswar in a proceeding u/s 147, Code of Criminal Procedure as well as the order passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court No.2, Bhubaneswar dismissing the revision filed by the petitioners.

From the record, it appears that the opposite party had purchased Hal Plot No. 1080 under Hal Khata No. 9 of mouza-Jharapada in the year 1960 and he constructed a thatched house over the said land. He filed O.S. No. 97/82 before the Munsif, Bhubaneswar praying for permanent injunction and for declaration of his easementary right over Plot No. 1079. Prayer for easementary right was decreed in the said suit in August, 1984. The allegations in the proceeding u/s 147, Code of Criminal Procedure is that in spite of such declaration made by the Civil Court, the present Petitioners stacked about 300 stones on the road for construction of a Chandini by blocking the road. After filing of the show-cause by the present Petitioners, the impugned order was passed by the S.D.M., Bhubaneswar directing the Petitioners to remove the stones. Said order was challenged in revision and the revision having been dismissed, the present application u/s 482, Code of Criminal Procedure has been filed.

Shri Basu, learned Counsel appearing for the Petitioners raised only one ground challenging both the orders stating that the opposite party had earlier approached the Sub-Divisional Magistrate in a proceeding u/s 147, Code of Criminal Procedure in respect of the same land and therefore repeated applications u/s 147, Code of Criminal Procedure between the same parties for the same relief cannot be entertained. Learned Counsel appearing for the opposite party, on the other hand, submitted that this being an application in the garb of a second revision the Court should not entertain the same as the second revision is not maintainable under law.

From the impugned order passed by the learned Sub-Divisional Magistrate, it appears that the opposite party had earlier filed an application u/s 147, Code of Criminal Procedure which was registered as Criminal Misc. Case No. 474/1987. In the said proceeding the order was passed directing both the parties not to cause any obstruction of the passage. In spite of such order passed the second party members are alleged to have stacked stones obstructing the passage. According to the learned Counsel for the Petitioners, one order having been passed in the aforesaid Criminal Misc. Case No. 474/87, second application for the self-same reason was not maintainable. Learned Counsel could neither produce any authority nor referring to the statute itself to convince the Court that the second application is not maintainable even if the first order passed in similar proceeding is violated. I, therefore, do not find any reason to interfere with the concurrent findings of both the Courts below in an application u/s 147, Code of Criminal Procedure Accordingly, this CRLMC is dismissed.