The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2651 of 2022 Batakrushna Behera … Petitioner Mr.S.Sahoo, Advocate -versus- State of Odisha and others … Opposite Parties
Legal Reasoning
Mr.S.S.Pradhan, AGA O.P. No.2-None Order No. CORAM: JUSTICE G. SATAPATHY ORDER(ORAL) 17.08.2023 04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. The petitioner invokes the power of the Court U/s. 482 of the Cr.P.C. praying the following reliefs:- “It is therefore prayed that this Hon’ble Court would graciously be pleased to Admit the Petition, call for the relevant records, issue notice to the opposite party and after hearing the counsel for the parties, allow the petition by quashing the order dated 04.07.2022 passed in Crl. Revision No. 46 of 20221 by the learned Addl. Sessions Judge, Bhubaneswar as well as the Criminal Miscellaneous Case so far as it relates to Section-147 of Cr.P.C. by directing restoration of boundary wall/fence as it was with the petitioner’s possession and further be pleased to set the petitioner at Page 1 of 5 large by safeguarding his constitutional right at large by safeguarding his constitutional right to liberty and free living.” 3. After having considered the submission of learned counsel for the petitioner upon an overview of the facts on record, it would go to reveal that O.P. No.2 has approached the learned Addl. DCP-cum-Executive Magistrate, Bhubaneswar against the petitioner in CMC No. 731 of 2018 praying for removal of bamboo fence(obstruction) over the common passage of 10ft. width made by the petitioner-cum-2nd party therein, but the learned Addl. DCP-cum-Executive Magistrate, Bhubaneswar by an order passed on 01.02.2019 directed the 2nd party-petitioner herein to remove the obstruction over the case land by invoking power U/S. 147(3) of Cr.P.C. within 15 days, which was unsuccessfully challenged by the petitioner before the learned Additional District and Sessions Judge, Bhubaneswar in Criminal Revision No.46 of 2021. Against that concurrent finding, the petitioner has approached this Court in an application U/S. 482 of Cr.P.C. with relief indicated supra. 4. In the course of hearing of CRLMC, this Court specifically puts a question to the learned counsel for the petitioner as to whether the orders impugned herein can be quashed by this Court in exercise of power U/s. 482 of Cr.P.C., but Mr.R.Sahoo, learned counsel for the petitioner could not convince the Court Page 2 of 5 in this regard nor he could satisfy the Court that the impugned orders can be quashed. On the other hand, none appears for O.P. No.2. The State being formally arraigned as O.P. No.1 in the present application, learned counsel appearing on its behalf prays to pass appropriate order. 5. Admittedly, the power U/S. 482 of Cr.P.C. can be invoked by High Court on three grounds, firstly; to make such orders as may be necessary to give effect to any order under the Cr.P.C., secondly; to prevent abuse of the process of any Court; and thirdly, otherwise to secure the ends of justice. The order impugned in this case reveal an adjudication made by learned Additional District and Sessions Judge, Bhubaneswar in a Revision to check the sustainability of the order passed by the learned Addl. DCP-cum- Executive Magistrate, Bhubaneswar in CMC No. 731 of 2018 and the learned Additional District and Sessions Judge, Bhubaneswar has given sufficient reasons while confirming the order of learned Addl. DCP-cum- Executive Magistrate, Bhubaneswar. This Court is not sitting in an appeal or revision against the order passed by the learned Additional District and Sessions Judge, Bhubaneswar in criminal revision, more so when the same was passed in exercise of power conferred in law to the said Court and this Court, therefore, does not consider it to be an abuse of process of Court. Page 3 of 5 6. When 2nd Revision against an order is not maintainable in terms of Sec. 397(3) of the Cr.P.C., whether the said order after it was unsuccessfully challenged in the revision before the Sessions Judge can be impugned again before the High Court in the guise of exercise of power U/S. 482 of Cr.P.C. This question was answered in Krishnan and another v. Krishnaveni and another; (1997) 4 SCC 241, wherein the Apex Court in para-10 has held as under:- “ Ordinarily, when revision has been barred by Section 397(3) of the Code, a person—accused/complainant--- cannot be allowed to take recourse to the revision to High Court U/S. 397(1) or under inherent power of High Court U/S. 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that High Court has suo motu power U/S. 401 supervisory continuous jurisdiction U/S. 483 of the Code. So when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue.” and Page 4 of 5 7. From a bare perusal materials placed on record, this Court does not find any scope to interfere with the impugned order on the ground that to give effect to any order or to secure the ends of justice. Besides, the dispute existing between the parties appears to be quasi criminal or civil in nature and the parties have different forum under civil as well as criminal law to redress their grievances, but certainly the orders impugned herein cannot be quashed in exercise of power U/S. 482 of Cr.P.C. 8. In view of the discussion made in the forgoing paragraphs and the law laid down by the Apex Court in Krishnan (supra), this Court does not find any merit in the present CRLMC. 9.
Decision
In the result, the CRLMC sans any merit stands dismissed, but in the circumstance there is no order as to costs. (G. Satapathy) Judge kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 18-Aug-2023 11:28:04 Page 5 of 5