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1990 Supreme(Ori) 32
High Court Of Orissa
K. P. MOHAPATRA
NIRANJAN BEHERA - Appellant
Versus
LAXMIDHAR RANA - Respondent
C. R. 565 Of 1989
Decided On : 03/14/1990
R.M.MOHANTY
An Executive Magistrate has the implied power to pass an interlocutory order under Section 147 of the CrPC to prevent hardship to a party in a particular case.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 147 - INTERIM ORDER - EXECUTIVE MAGISTRATE - POWER TO PASS - IMPLIED POWERS - INTERPRETATION OF STATUTES - NECESSARY INTENDMENT - ANCILLARY POWERS.
Fact of the Case:
Dispute over a passage leading to the petitioner's house. The opposite parties obstructed the passage, depriving the petitioners of its use. The Executive Magistrate passed an interlocutory order to maintain the status quo. The Additional Sessions Judge set aside the order, holding that the Executive Magistrate had no jurisdiction to pass an interim order under Section 147 of the Code of Criminal Procedure (CrPC).
Finding of the Court:
The Executive Magistrate has the implied power to pass an interlocutory order under Section 147 of the CrPC to prevent hardship to a party in a particular case, even though the section itself does not expressly provide for such an order.
Issues: Whether the Executive Magistrate has the power to pass an interlocutory order under Section 147 of the CrPC.
Ratio Decidendi: The court held that the Executive Magistrate has the implied power to pass an interlocutory order under Section 147 of the CrPC to prevent hardship to a party in a particular case. The court relied on the principles of interpretation of statutes, which allow for the implication of powers that are necessary to make a grant of power effective. The court also noted that the absence of an express prohibition against passing an interlocutory order in Section 147 of the CrPC suggests that the Executive Magistrate has the implied power to do so.
Final Decision: The court allowed the revision petition, set aside the order of the Additional Sessions Judge, and restored the order of the Executive Magistrate.
K. P. MOHAPATRA, J.
( 1 ) THIS revision is directed against the order passed by the learned Additional Sessions Judge, Cuttack, setting aside an interlocutory order passed by the Executive Magistrate, Cuttack, in a proceeding under Section 147 of the Code of Criminal Procedure ('code' for short ).
( 2 ) THE parties belong to Cuttack town. The petitioners have their house on plot No. 1439. The opposite parties have their house on adjoining plot No. 1438. There is a passage on parts of plot No. 1438 and another adjoining plot No. 1441 in order to approach the petitioner's house from the public lane and this seems to be the only passage. The opposite parties obstructed the passage, as a result of which the petitioners were deprived of using the same. This gave rise to a dispute between the parties leading to apprehension of breach of peace. The petitioners. therefore, moved the Executive Magistrate by filing an application which was forwarded to the police for enquiry and report. After receipt of the report of enquiry from the police, the Executive Magistrate promulgated a preliminary order under Section 147 of the Code and at the same time passed an interlocutory order which reads as follows : -". . . . . HEARD the learned counsel for the F. P. I feel that there is emergency to interfere in the matter. To prevent breach of peace between the parties status quo of the case land as on today be maintained by both the parties. "this order was challenged before the learned Additional Sessions Judge who after referring to AIR 1950 Raj 8 : (1951 Cri LJ 807), Bhanwar Singh v. Rama; AIR 1953 Tra-Co, 202 : (1953 Cri LJ 1013), Eralil Mathai Jacob v. K. Ravivarman Thirupad; AIR 1955 Raj 75 : (1955 Cri LJ 734), Rudi v. Ram Kumar; AIR 1961 Patna 369 : (1961 (2) Cri LJ 371), Rameshwar Rai v. Raghu Kehar, Vol. XXXVIII (1972) CLT 100 : (1972 Cri LJ 1148), Uchab Chandra Das v. Khirod Ch. Das and 1975 Cri LJ 1026, Gajraj v. Collector Singh, held : -". . . THE Executive Magistrate while in seisin of the proceeding under S. 147, Cr. P. C. has no jurisdiction to pass an interim order, much less the impugned order of status quo. . . "accordingly, he vacated the interim status quo order of the Executive Magistrate. This order has been challenged in this Court.
( 3 ) S. 147 of the Code deals with apprehension of breach of peace when dispute is raised concerning rights of use of land or water. If the Executive Magistrate is
satisfied from the report of a police officer or upon other information that a dispute is likely to cause a breach of peace regarding any alleged right of user of any land or water, he shall make an order in writing stating the grounds of his satisfaction and shall direct the parties concerned in such dispute to attend his court and put in written statements of their respective claims. After appearance and filing of written statements by the parties, the Executive Magistrate shall peruse the same, receive all such evidence as may be produced and then decide whether such right exists. In making such enquiry, the provisions of S. 145 of the Code as far as possible may be applied. If the would find that any such right exists, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right. To be more specific, the ultimate order that can be passed is u/sub-s. (3) which is quoted below :" (3) If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right. "a plain reading of S. 147 shows that the Executive Magistrate has no power to pass an interlocutory order in the same lines as provided in sub-s. (3) quoted above. He has jurisdiction to pass a final order in terms thereof. There is also no provision in S. 145 of the Code vesting p
