The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.150 of 2024 Bibekananda Dash 1.State of Odisha 2.Sub-Divisional Magistrate, Cuttack 3.Rajat Patra … vs … Petitioner Mr.Jyoti Patnaik, Advocate Opposite Parties Mr.S.S.Mohapatra, ASC (for O.Ps.1 & 2) CORAM: JUSTICE SAVITRI RATHO Order No.
Decision
ORDER 20.05.2024 (Through hybrid mode) 05. 1. This application under Section 397 read with Section 401 of Cr.P.C. has been filed challenging the order dated 21.03.2024 passed by the learned Sub-Divisional Magistrate, Cuttack (in short SDM) in Crl. Misc. Case No.04/2024 under Section 144 (2) of Cr.P.C. 2. Perusal of the order reveals that basing on the report submitted by the IIC, Govindpur vide DR No.303/P.S. dated 11.02.2024, the proceedings has been started where the petitioner was the first party and opposite party No.3 was a second party. A report had been called for from the Tahasildar, Kantapada on 19.03.2024 and basing on report dated 21.03.2024, the learned SDM (Sadar), Cuttack was Page 1 of 6 satisfied that both the parties need to be restrained from entering into the below Balada (Nailo) Sand Sairat to avoid any law and order situation and directed that both the parties alongwith general public are restrained for a period of 60 days from entering into the above land and from creating any disturbance. Since the period of 60 days have already expired, this CRLREV has become infructuous. 3. On 18.04.2024, notice had been issued to opposite party in Criminal Revision as well as Interim Application by this Court. On 14.05.2024, Mr.S.J.Mohanty, learned counsel had appeared and submitted that he has filed Vakalatnama on behalf of opposite party No.3 on 03.05.2024 and he needed sometime to file the counter affidavit/objection which was necessary as the petitioner had not come to this Court with clean hands and suppressed vital information which has a bearing in this case. 4. Considering the said submission, as the impugned order has been passed on 21.03.2024 the matter had been directed to be listed on 17.05.2024 with the observation that attempt will be made to finally dispose of the matter on the said date and objection/counter affidavit, if any shall be filed by the opposite party No.3 by 16.05.2024 serving a copy of the same on learned counsel for the Page 2 of 6 petitioner. On 17.05.2024 when the matter was listed, none appeared for the opposite party No.3. The Registry had also given a note that no Vakalatnama had been filed on behalf of opposite party No.3 nor had any objection or counter affidavit been filed on his behalf. In the interest of justice, the matter was directed to be listed on 20.05.2024 (today). 5. Mr.Jyoti Patnaik, learned counsel for the petitioner relies on the decision of the Karnataka High Court in the case of H.B.Ravikumar and others v. State of Karnataka and others reported in AIR Online 2021 Kar 1893. In the said judgment at paragraphs 6, 7 and 8, it has been held as follows: “6.Sub-section (1) of Section 144, Cr.P.C. reads thus: “144. Power to issue order in urgent cases of nuisance of apprehended danger- (1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by written order stating the material facts of the case and served in the manner provided by section 134, direct any person to Page 3 of 6 abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.” On a plain reading of the aforesaid provision, it is clear that the power cannot be exercised to prevent a licencee who has obtained a licence under the said Act of 2011 or a lessee who has been granted a quarrying lease under the said Rules of 1994 from carrying on crushing or quarrying operations, as the case may be. There are no recitals in the impugned order that such an action is taken to prevent obstruction, annoyance or injury to any person lawfully employed, or to prevent danger to human life, health or safely, or a disturbance of the public tranquility, or a riot, or an affray. 7. Moreover, the said Act of 2011 is a complete Code in itself as regards stone crushing licences. Under Section 9 thereof, a power has been conferred on the Licensing Authority to cancel a licence either suo motu, or on an application made by any person. There is a power of cancellation of a license/lease conferred by the said Rules of 1994 under Rules 6 (3) and 45 thereof. Page 4 of 6 8. Hence, the impugned order cannot be sustained and deserves to be quashed and set aside. However, this order will not prevent the State Government from taking appropriate measures to protect the Krishna Raja Sagar dam in accordance with law. Accordingly, the writ petition is disposed of.” 6. Mr.S.J.Mohanty, learned counsel is present in Court today and submits that on account of wrong information supplied by his clerk that Vakalatnama had been filed on behalf of opposite party No.3 on 03.05.2024, he had made the erroneous submission on 14.05.2024 and submits that he is ready with the Vakalatnama alongwith objection today. He submits that the petitioner has not approached this Court with clean hands and has suppressed the relevant facts for which his objection should be considered and the CRLREV should be dismissed. 7. As 60 days have elapsed since the impugned order was passed, the Criminal Revision has been rendered infructuous and it is not necessary to be disposed of on merit, so the objection of opposite party No.3 is not necessary. 8. Since the CRLREV has become infructuous, I dispose of the same granting liberty to the petitioner and opposite party No.3 to Page 5 of 6 bring the relevant facts as well as the decision of the Karnataka High Court referred to above to the notice of the learned Sub-Divisional Magistrate, Cuttack in any subsequent proceeding in case of necessity. 9. Urgent certified copy of this order be granted on proper application. ………………………... (SAVITRI RATHO) JUDGE Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 21-May-2024 21:13:21 Page 6 of 6