The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4274 of 2015 (In the matter of an appeal under Section 482 of the Code of Criminal Procedure). Kishore Chandra Mohanta & others …. Petitioners Makara alias Jitendra Mohanta & others … Opposite parties -versus- For Petitioners : Mr. S.K.Patnaik, Advocate For Opposite Parties : Mr.B.N.Mohapatra, Advocate CORAM: JUSTICE G. SATAPATHY DATE OF JUDGMENT:14.08.2023 G. Satapathy, J. 1. The petitioners by way of this application U/S. 482 of Cr.P.C. seek to quash the order passed on 05.08.2015 by Sub-Divisional Magistrate, Bamanghaty, Rairangpur in C.M.C. No. 49 of 2013 converting the proceeding U/S. 145 to 147 of the Cr.P.C. CRLMC No. 4274 of 2015 Page 1 of 7 2. The facts in precise are petitioners and the opposite parties are neighbours to each other and it
Facts
is alleged that on being instigated by plaintiff in C.S. No. 11 of 2013, the opposite parties tried to encroach upon the remaining land of the petitioners in Plot No. 496 and 435 of Khata No. 1 kisam ‘Bari’ and ‘Gharabari’ by claiming the same to be their right of way for ingress and egress from their residential plot in land No. 434 through land in plot No. 497 recorded as ‘Sarbasadharana Rasta’ and thereby, forced the petitioners to lodge an FIR against opposite parties who subsequently also lodged an FIR against the petitioners. The police on receipt of these two FIRs, submitted a PR requesting initiation of a proceeding U/s. 145 of Cr.P.C. by arraying the present petitioners as second parties and opposite parties as first parties before the S.D.M., Bamanghaty, Rairangpur with a prayer for direction to remove the fence over plot No. 435 and 496 belonging to the petitioners and thereafter, the learned SDM, CRLMC No. 4274 of 2015 Page 2 of 7 Bamanghaty, Rairangpur by an order passed on 19.10.2013 initiated a proceeding U/S. 145 of Cr.P.C. calling upon both first parties and second parties to appear before him and submit written statement of their respective claims by 13.11.2013 by directing the local police to remove obstacles from the passage with immediate effect, but such order was unsuccessfully challenged before the learned Additional Sessions Judge, Rairangpur in Criminal Revision No. 06 of 2013. The learned SDM Bamanghaty, Rairangpur after recording the evidence of witness No.1 for first parties (opposite parties herein) deferred the cross- examination of said witness to 25.04.2015, but subsequently on two petitions of the first parties (opposite parties herein), invited objections from the petitioners-cum-second parties and after hearing both the parties passed the impugned order on 05.08.2015 converting the proceeding to one U/S. 147 of the Cr.P.C. Hence, present CRLMC. CRLMC No. 4274 of 2015 Page 3 of 7 3.
Legal Reasoning
After having considered the rival submissions made, it undisputedly appears that on receipt of a police report, the learned SDM Bamanghaty, Rairangpur had issued an order by Annexure-5 in CMC No. 49 of 2013 U/s. 145(1) of the Cr.P.C. CRLMC No. 4274 of 2015 Page 4 of 7 directing parties to file their written statements, but the initial order was never challenged by any of the parties before any Court, and during pendency of such proceeding, the SDM Bamanghaty, Rairangpur by Annexure-8 had converted the proceeding to one U/S. 147 of Cr.P.C. The above order was passed way back on 26.08.2015 and the same was challenged by the petitioners in this case on 13.10.2015, but the operation of impugned order was never stayed by this Court. There is no squabble in law for conversion of proceeding U/s. 145 to 147 of the Cr.P.C. as the same is very much in the domain of such Magistrate U/S. 147(4) of the Cr.P.C. 6. It is of course advanced for the petitioners that a civil suit is pending concerning the matter, but the same was challenged by the opposite parties on the ground that the same is not in respect of same plot, rather in respect of other plots. The decision in Mahant Ram Saran Dass v. Harish Mohan & another; (2001) 10 SCC 758 has been relied on by CRLMC No. 4274 of 2015 Page 5 of 7 the petitioners, but the same being rendered in peculiar facts of that case may not be applicable in this case since the suit land in the present case is part of the larger case land and the proceeding thereon U/S. 147 of Cr.P.C. for the remaining land can be said to be maintainable. Besides, the authority relied on by the opposite parties in Amresh Tiwari v. Lalta Prasad Dubey and another; AIR 2000 SC 1504, the Apex Court has held that we are not stating that in every case, where a civil suit is filed, section145 of Cr.P.C. proceeding would not lie. Additionally, neither parties had apprised this Court the present status of the suit which was admittedly filed in the year 2013. Be that as it may, the petitioners herein have never challenged the initial order passed on 19.10.2023 in CMC No. 49 of 2013 U/S. 145 of Cr.P.C., but when the same was converted to a proceeding U/s. 147 of Cr.P.C., the petitioners have challenged that order, but that is CRLMC No. 4274 of 2015 Page 6 of 7 permissible under law. Consequently, no grounds are made out to interfere with the impugned order. 7. In the result, the CRLMC merits no consideration and is accordingly dismissed. However, taking into consideration the pendency of the proceeding since 2013, the learned SDM Bamanghaty, Rairangpur is hereby requested to dispose of the case as expeditiously as possible preferably within a period of three months of receipt of copy of this order. Parties are directed to cooperate, but in case the parties fail to cooperate, necessary order be passed in that proceeding in accordance with law. Judge (G. Satapathy) Orissa High Court, Cuttack, Dated the 14th day of August, 2023/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 16-Aug-2023 10:26:48 CRLMC No. 4274 of 2015 Page 7 of 7
Arguments
Mr.S.K.Patnaik, learned counsel for the petitioners has challenged the impugned order mainly on the ground that without calling for any further report, the learned Magistrate has converted the proceeding to one U/S. 147 of Cr.P.C., especially when there is a civil suit pending for adjudication in the matter. 4. On the other hand, Mr.B.N.Mohapatra, learned counsel for the opposite parties, however, has seriously contended that the civil suit pending being not between the present parties, there is no impediment to convert a proceeding U/S. 145 of Cr.P.C. to U/s. 147 of Cr.P.C. and the learned Magistrate has not committed any illegality in passing the impugned order. 5.