NARAIN DAS GUPTA Vs. SHYAM SUNDAR GUPTA

JUDGEMENT

(1.) The members of the second party who are the losers in a Section 145, Cr PC proceeding, are the petitioners. The proceeding was initiated on the basis of police report on 7 -11 -1991 with orders simultaneously passed Under Section 146(1), Cr PC attaching the land and restraining both the parties from going upon it. An application was filed by the petitioners on 12 -11 -1991 Under Section 148, Cr PC for a local enquiry. The first party (opposite party, here) filed objection to the application and on 9 -12 -1991 the learned Magistrate rejected the application. Thereafter the proceeding was continued and witnesses were examined. After examination of the witnesses on behalf of the second party, an application was filed by the petitioners on 11 -3 1992 seeking local inspection of the spot by the Magistrate or to direct the receiver to verify the records. In the written statement filed by the petitioners the stand taken was that the disputed premises was a shop room of which they were the tenants and that as the opposite party wanted them to vacate the premises and they expresed unwillingness, the proceeding had been initiated, It was their further case that they were running their business in the premises under the firm's name 'Narain Das Tejpal Firm' dealing with essential commodities under licence issued by the Collector, Balasore, valid upto 31 -3 -1992. The shop room had also electric connection in the name of the petitioner No. 1 bearing Consumer No. 1037(C) and that the shop was also insured with the Oriental Insurance Company holding Policy No. 316307/48/92/00015. The members of the second party had also licences under the Central and State Sales -Tax Acts in respect of the shop, that they had raised a loan of Rs. 2,00,000/ - from the United Bank of India, Charampa Branch on their business carried on in the shop, and that stock was hypothecated to that Bank. They also pleaded that they had telephone connections bearing Nos. 2496 and 2086 in the same premises. The application filed by the petitioners, for local inspection by the Magistrate was rejected on 8 -4 -1992 and thereafter, after hearing the arguments of the parties, final order was passed by the Executive Magistrate on 20 -5 -1992 dropping the proceeding on the view that he was not able to ascertain and decide the possession of either of the parties and that hence they should take shelter in the competent Court of law. In passing the order he directed continuance of the order Under Section 146(1), Cr PC passed on 7 -11 -1991 so as to avoid breach of peace. It is this order which is impugned in this revision.

(2.) IN coming to the conclusion of he being not able to decide as to which party was in possession within the stipulated period the learned Magistrate observed that the petitioners, since the initial stage of the proceeding, had been trying to convince the Court that all the documents and proofs in shape of materials were lying in the disputed premises which had been locked, but the application being Under Section 148, CrPC, it had been wrongly filed before him as the Magistrate conducting the Section 145, CrPC proceeding is not empowered to hold local inquiry. It was his view that the petitioners could have taken steps when the proceeding was in the Court of the Sub -Divisional Magistrate. Bhadrak who could have directed local inquiry but that having not been done, the local inquiry sought for by the petitioners before him was beyond his authority to direct.

(3.) MR . Misra for the petitioners urges the sole submission that the petitioners were deprived of the opportunity to establish their possession as all the records relating to possession of the premises were locked up inside the premises and that even if their application Under Section 148, CrPC before the Magistrate was not maintainable, yet he could have at least undertaken a local inspection of the premises Under Section 310, Cr PC on the basis of their application made on 11 -3 -1992 and that having not been done, and the application having been rejected without any proper reasons, the impugned order is vitiated. It is on the other hand the submission of Mr. Dhal, the learned counsel appearing for the opposite party that Section 310, Cr PC has no application to a proceeding Under Section 145, Cr PC in view of Section 148, Cr PC and that on earlier application Under Section 148, Cr PC having been rejected as early as on 9 -12 -1991 and the petitioners having not taken steps either to challenge that order or to take proper steps Under Section 148, CrPC to have a local enquiry done, a subsequent application for local inspection was not maintainable.