RADHAMOHAN PANDA Vs. BRUNDABAN NAIK

JUDGEMENT

(1.) IN this criminal revision the petitioners who were the members of the first party, have prayed for quashing the proceeding under Section 145 in exercise of the inherent powers of this Court under Section 482 of the Code of Criminal Procedure ('Code' for short).

(2.) IT is necessary to relate the history of the case to show how a proceeding initiated on police report on 16.11.1974 has still been kept alive even after a decade. On 16.11.1974 the preliminary order under Section 145 of the Code was drawn up and both parties were directed to appear and file their written statements Simultaneously, because appeared to be a case of emergency, the disputed land with standing crops was attached under Section 146(1) of the Code. In response to the notice, both parties appeared, filed their written statements and adduced evidence, both oral and documentary, on consideration of which the learned Executive Magistrate Bhanjanagar, by order dated 13.9.1976 declared the possession of the opposite parties, who were the members of the second party in the proceeding, in respect of the land In dispute. Against the said order, the petitioners came up in revision (Criminal Revision No. 320 of 1976) to this Court and challenged the order passed under Section 145 of the Code on the ground that after attachment of the disputed land under Section 146(1), the learned Executive Magistrate became function officio and had no further jurisdiction to continue the enquiry regarding possession. This Court by order dated 15.12.1977 disposed of the said criminal revision in the manner quoted below:

(3.) RELYING upon a decision reported In 1978 S C. C (Criminal) 100 (Chandu Naik and Ors. v. Sitaram B. Naik and Anr.) a Learned Single judge of this Court in the decision reported in 47 (1979) C.L.T.600 (supra) held that there is no automatic cessation of the proceeding under Section 145 on the passing of an order of attachment under Section 146(1) of the Code Law has also been settled in A.I.R.1980 S.C. 242 (Mathuralal v. Bhanwarlal and Anr.) that the Executive Magistrate's jurisdiction does not come to an end as soon as an attachment is made on the ground of emergency. The learned executive Magistrate relied upon the principle laid down in the aforesaid decisions and renewed the enquiry by order dated 30 -7 -1979 completely ignoring the order of this Court in Criminal Revision No. 320 of 1976, finally disposing of the proceeding under Section 145 of the Code. Even if the order passed by this Court in the said criminal revision was erroneous in law, until and unless it is set aside by the Supreme Court remains effective to ail intents and purposes. The learned Executive Magistrate had no jurisdiction to set at naught the effect of the order by reopening the proceeding under Section 145 without there being a fresh police report. He had jurisdiction to act in accordance with the order and not in derogation of it. By revising the proceeding under Section 145 and directing the parties to adduce evidence, he acted directly in derogation of the order of this Court it was open to him to act in accordance with it and withdraw the attachment at any time on satisfaction that the there was no longer any apprehension of breach of peace with regard to the subject of dispute and proceed with the enquiry to determine the possession of the parties on the date of the preliminary order. After virtual termination of the proceeding in terms of the order in Criminal Revision No. 320 of 1976 and in the absence of a fresh police report, he was not competent: to declare that there was still apprehension of breach of peace, because he had no material to arrive at that conclusion. It is indeed unfortunate that the learned Executive Magistrate proceeded with the enquiry in manner in direct violation of the order of this Court referred to above. Judicial discipline demands that a subordinate Court shall honour and give effect to the order of a superior Court In this background, the contention of Mr. B.L.N. Swamy is correct and I hold that by virtue of the order passed in Criminal Revision No. 320 of 1976 of this Court which is in full force, the proceeding under Section 145 was terminated in terms of it.