The court emphasized the importance of the learned Magistrate applying judicial discretion and proper consideration when passing orders under S.146(1) of the Code. It also clarified the Magistrate's discretion to draw up one proceeding when one party claims the entire land and the members of the other party claim portions thereof.

JUDGEMENT

1. These Criminal Revisions arising out of two proceedings under S.145 of the Criminal P. C. ('the Code', for short) involving common questions have been heard analogously and will be governed by this common order.

2. Mrs. A.K. Padhi, the learned counsel for the petitioners, has raised two contentions:-

(1) The learned Magistrate has not applied his mind judicially before passing the order under S.146 (1) of the Code; and

(2) As the members of the second party, who are the petitioners in this Court, claim possession of separate portions of the lands, one proceeding could not be drawn up legally as the petitioners would thereby be prejudiced.

Mr. C.V. Murty, the learned counsel for the opposite parties, has, however, submitted that it is open to the learned Magistrate to pass an order under S.146 (1) of the Code in case he is satisfied that the case is one of emergency and in a case of this nature, where the opposite parties have been claiming the whole of the lands and the petitioners have been claiming portions thereof, one proceeding would be maintainable.

3. Coming to the first question raised by Mrs. Padhi, it would be noticed from the impugned order that while dawing up the proceedings under S.145 (1) of the Code, the learned Magistrate simultaneously passed order attaching the lands under S.145 (146?) (1) of the Code and appointing the Revenue Inspector, Komonda, as the receiver, without assigning any reasons. This would show that the learned Magistrate had not applied his mind properly and had not exercised his discretion judicially while passing the orders under S.146 (1) of the Code without even recording that he had been satisfied that cases required emergent measures. I would, therefore, quash these orders passed in both the proceedings. It is open to the learned Magistrate to pass an order under S.146 (1) of the Code in each of the proceedings in accordance with the provisions contained in S.146 (1) of the Code.

4. I am not inclined to accept the other contention raised by Mrs. Padhi for the petitioners. On the principles laid down in the cases of Rabindra Mohapatro v. Bhagirathi Mohapatro, (1972) 1 Cut WR 743 and Brundaban Kuar v. Kanhei Jagat, (1975) 41 Cut LT 88, where one party claims the entire land and the members of the other party portions thereof, it is open to the Magistrate to draw up one proceeding. There is no material to show that the petitioners have been prejudiced by the course adopted by the learned Magistrate. If in the course of the proceedings, the learned Magistrate comes to find that the petitioners are likely to be prejudiced in their cases in the two proceedings on this account, it would be open to the learned Magistrate to split up the proceedings. This matter, however, is left entirely to his discretion to be exercised judicially.

5. The Criminal Revisions are accordingly allowed in part.

Order accordingly.