Saroj Kumar Sahoo Vs Kanakalata Dash

Heard learned counsel for the Petitioner as well as learned counsel for the Opposite Party. Perused the application as well as the prayer made therein.

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The present application has been filed under Section 528 of BNSS read with Section 482 of Cr.P.C. challenging order dated 07.01.2025, which is interim in nature passed in Criminal Misc. Case No.422 of 2024 by the learned Executive Magistrate-ADCP, Cuttack. By virtue of the impugned order dated 07.01.2025 at Annexure-4 the learned Executive Magistrate, U.P.D. Cuttack in a

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Page 1 of 5.

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proceeding initiated under Section 144 of Cr.P.C. at the instance of the 1^st party, Opposite Party in the present application. In course of such proceeding the 2^nd party appeared through his counsel on 07.01.2025, it appears from the order sheet that the Vakalatnama filed by Mr. A.B. Lenka and associates was accepted and they are allowed to participate in the proceeding representing the 2^nd party members. Further, perusal of the order dated 07.01.2025 reveals that after hearing both sides the learned Executive Magistrate has observed that the 1^st party member has filed an application under Section 147 of Cr.P.C. While considering such application under Section 147 of Cr.P.C., learned Executive Magistrate call for a demarcation report of the disputed scheduled land and passage/road from the Tahasildar, Sadar Cuttack for further consideration in the said pending proceeding. Finally, the previous interim order was continued till next date and the case was directed to be posted on 06.02.2025.

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Learned counsel for the Petitioners in course of his argument submitted before this Court that the 2^nd party member, who are the Petitioners before this Court moved an application raising objection with regard to the maintainability of the proceeding. Such petition raising questions with regard to the maintainability of the proceeding should have been taken up in the earliest point of time before passing any further order. He further contended that without first disposing of the maintainability application the learned Executive Magistrate proceeded with the pending proceeding and went on to pass different orders. He also raised questions with regard to the validity of order dated 07.01.2025. Finally, a prayer has been made in the present application is for setting aside of order dated

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Page 2 of 5.

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07.01.2025.

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Learned counsel appearing for the 1^st party member, Opposite Party in the present application submits that the maintainability application filed at the instance of the 2^nd party members has already been disposed of vide order dated 06.02.2025. It was alleged by Mr. Dash, learned counsel for the Opposite Party that such fact was not brought to the knowledge of this Court in course of hearing in the present application. He further submitted that by virtue of the impugned order dated 07.01.2025 the learned Executive Magistrate has only called for a demarcation report from the Tahasildar, Sadar Cuttack and that no final order has been passed as of now. In such view of the matter, learned counsel for the Opposite Party contended that the Petitioners are in no way prejudiced by the order dated 07.01.2025.

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Having heard the learned counsels appearing for the respective parties, on a careful examination of the background facts as well as the materials on record, further on a close scrutiny of the order sheet, this Court observes that the Petitioners have approached this Court specifically challenging order dated 07.01.2025 passed in CRLMC No.422 of 2024 by the learned Executive MagistrateADCP, Cuttack. As has been discussed above, initially the proceeding was initiated on 06.03.2024 at the instance of the 1^st party member under Section 144 of Cr.P.C. During pendency of the said proceeding the 1^st party member filed an application under Section 147 of Cr.P.C. seeking correction of some clerical/arithmetical error. While both the application under Section 147 of Cr.P.C. as well as the maintainability application filed at the instance of the 2^nd party members were pending, the learned

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Executive Magistrate passed the order dated 07.01.2025 calling for a demarcation report from the Tahasildar, Sadar Cuttack. On a close scrutiny of order dated 07.01.2025, it appears that on the later part of the day the 2^nd party members filed their written note of submission on the maintainability petition along with their citations and documents which was duly received by the 1^st party members. Accordingly, the petition raising question with regard to the maintainability was posted to 06.02.2025 awaiting the demarcation report as well as the objection from the side of the 1^st party member. Pursuant to the direction of this Court, learned counsel for the State produced the entire case record. On perusal of the order sheet, it appears that on 06.02.2025 the matter was taken up by the learned Executive Magistrate-ADCP, Cuttack. On 06.02.2025 the petition with regard to the maintainability was disposed of holding that the proceeding is maintainable in the eye of law. Although such order dated 06.02.2025 has not been challenged further at the instance of the 2^nd party members.

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On a close scrutiny of the factual background of the present case as well as impugned order dated 07.01.2025, this Court is of the view that the main grievance of the Petitioners, i.e., maintainability application was kept pending. Moreover, it appears that no final order has been passed as of now. In view of the aforesaid position, this Court deems it proper to dispose of the present application by directing the learned Executive Magistrate-ADCP, Cuttack to provide ample opportunity of hearing to both sides and pass the final order in accordance with law by assigning reasons for arriving at the conclusion. Further, it is directed that the learned Executive Magistrate shall make every endeavor to conclude the proceeding as

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expeditiously as possible preferably within a period of three months. It is further observed that in the event any interim application is pending, on an application being moved for early disposal of such interim application, the learned Executive Magistrate shall do well to dispose of such interim application as expeditiously as possible, preferably within a period of three weeks, after providing ample opportunity to both sides.

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With the aforesaid observation/direction, the CRLMC application stands disposed of.

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( Aditya Kumar Mohapatra )

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Judge

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S.K. Rout

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Signature Not Verified

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Digitally Signed Signed by: SANTANU KUMAR ROUT Page 5 of 5. Reason: Authentication Location: High Court of Orissa, C utta ck Date: 13-Oct-2025 13:27:48

Saroj Kumar Sahoo v. Kanakalata Dash

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Saroj Kumar Sahoo v. Kanakalata Dash

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