ORDER
P.K. Tripathy, J.
1. 16.11.2000 – Heard.
2. This application under Section 482, Cr.P.C. is disposed of at the stage of hearing on admission with the active participation of both the parties.
3. The undisputed fact is that petitioners are the second party members and the opposite party is the first party member in Criminal Misc. Case No. 294 of 1995 of the Court of Executive Magistrate, Kendrapara, and that the said proceeding was initially initiated under Section 144, Cr.P.C. but subsequently converted to a proceeding under Section 145. Cr.P.C. and was disposed of on 6.4.2000 restraining the second party members to enter into the case land till the competent Court of jurisdiction (the Civil Court) passes suitable orders on the claim of the parties. As stated at the Bar, both the parties have filed their written statements and some of the witnesses were also examined during the course of enquiry.
4. It appears from the impugned order of the learned Executive Magistrate that he has neither referred to the dispute in question in between the parties nor their respective pleas or the evidence on record. The aforesaid mistake of the learned Executive Magistrate which is in gross violation of the provisions in Section 145, Cr.P.C. was unfortunately approved by learned Additional Sessions Judge, Kendrapara in Criminal Revision No. 12 of 2000, who disposed of the said Criminal Revision by making a sweeping remark that there is nothing to interfere with the said order. Learned Addl. Sessions Judge is advised to be careful and mindful while adjudicating such applications and to deal with impugned orders with due reference to the provisions of law as well as the factual statements. A copy of this order be sent to the concerned Judicial Officer (who has passed such order) for his information and guidance.
Undoubtedly the order dated 6.4.2000 passed by the learned Executive Magistrate is a big zero. He has neither referred to the dispute nor decided the case under Section 145, Cr.P.C. He must remember that determination of the rights of the parties advancing rival claim of right, title, interest or possession is the domain of the Civil Court to adjudicate such rights. But, in the event of scramble for possession giving rise to apprehension of breach of peace concerning land or water or boundaries thereof, it is the preventive provision in the Code of Criminal Procedure i.e., Section 145, Cr.P.C, which comes to play a vital role unless there is any decree or interim order from the Civil Court protecting the right of any of the parties. In absence of any such decree or order from the Civil Court, the Executive Magistrate is duty-bound to decide the issue, as to which party was in possession on the date of preliminary order or within a period of two months from the date of said order, as the case may be. Since the order dated 6.4.2000 of learned Executive Magistrate is grossly whimsical, arbitrary and without due application of mind to decide the issue in proper and lawful manner, this Court has no hesitation to set aside the said order alongwith the order of learned Addl. Sessions Judge in Criminal Revision No. 12 of 2000. Learned Executive Magistrate is directed to undertake the enquiry in accordance with law and complete it within a period of two months from the date of receipt of a copy of this order. Learned counsel for the petitioners undertakes to file a copy of this order in that Court. In view of that, to avoid any further delay, both the parties are directed to appear before learned Executive Magistrate, Kendrapara on 18.12.2000. Petitioners shall produce a copy of this order in that Court by that date and on that date learned Executive Magistrate shall fix a date of hearing and thereafter take up the hearing as far as practicable on day to day basis and decide the case in the manner indicated above. Both parties if they will so desire, be permitted to adduce further evidence, if any. In that respect the first party shall be called upon to adduce further evidence, if any, from his side and thereafter the second party shall be called upon to adduce evidence, if any, from their side. Granting of liberal adjournments be scrupulously avoided and the dispute be decided with due application of mind to the facts and evidence on record and by a speaking order.
The Criminal Misc. Case is allowed accordingly.