Remanded

Prakash Parida v. State Of Orissa

Orissa HC24 Sept 2016CRLREV/586/2016

Case brief

AI extract

What is this about?

The Court set aside an impugned order dated 07.04.2016 passed by the Sub-Divisional Magistrate, Kendrapara, under Section 133 Cr.P.C., holding it was vitiated as statutory procedure under Section 138 Cr.P.C. was not followed. The matter was remanded to the Magistrate to afford due opportunity to both sides.

What did the court decide?

The impugned order dated 07.04.2016 is set aside. The matter is remanded to the Sub-Divisional Magistrate to follow the procedure under Section 138 Cr.P.C. and pass a final order.

Prakash Parida Vs State Of Orissa — Landlord and Tenant | Orissa HC (2016)

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CRLREV No.586 of 2016

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Prakash Parida & another

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-Vrs.-

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Rajesh Parida

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24.09.2016 In this revision petition, the petitioners have challenged the order dated 07.04.2016 passed by the learned Sub-Divisional Magistrate, Kendrapara in Criminal Misc. Case No. 32/15 of 2015 in a proceeding under section 133 Cr.P.C.

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Learned counsel for the petitioner submitted that on receipt of the notice in the aforesaid case which was instituted at the instance of the opp.party no.2 Rajesh Parida under section 133 Cr.P.C., the petitioners filed their show cause and the learned SubDivisional Magistrate, Kendrapara without following the procedure laid down under section 138 of the Cr.P.C. directed the Tahasildar, Kendrapara to demarcate the case land with the help of office Amin and to evict the encroacher within 15 days, if any, from the road. It was further directed that any construction that creates public nuisance shall be demolished forthwith.

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Section 138 Cr.P.C. reads as follows:

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“138. Procedure where he appears to show cause .-(1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case.

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(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he

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considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.

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(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

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In view of the language of the section, it is apparent that before making the conditional order absolute, the Magistrate must give sufficient opportunity to the aggrieved party to show cause against the confirmation of the preliminary order. If a person against whom an order under section 133 of the Code is made, appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. If he fails to do so, the aggrieved party would be prejudiced. A Magistrate cannot be permitted to adopt a short cut method by bypassing a mandatory provision. If the Magistrate posts the case for enquiry, it is incumbent on him to call upon the complainant to adduce evidence either by examining himself or otherwise. A Magistrate cannot act on his own opinion but he is bound to take evidence as a basis for the order he has to make otherwise the order would be illegal.

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In the present case, it is apparent that the Magistrate has not followed the procedure laid down under section 138 Cr.P.C. and he has not taken the evidence in the matter as in a summons case and therefore, passing of the final order on 07.4.2016 is vitiated.

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Accordingly, while setting aside the impugned order dated 7.04.2016, the matter is remanded to the learned Sub-Divisional Magistrate, Kendrapara to follow the procedure laid down under section 138 Cr.P.C. giving due opportunity to both the sides and then pass the final order.

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It is made clear that this Court has not expressed any opinion on the merits of the proceeding. Since the proceeding under Section 133 Cr.P.C. was instituted in the year 2015, the learned Sub-Divisional Magistrate shall do well to conclude the entire proceeding by end of November, 2016.

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With the aforesaid observation, Criminal Revision is disposed of.

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…………………

Prakash Parida v. State Of Orissa

Case brief

What is this about?

What did the court decide?

Prakash Parida v. State Of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

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