Suresh Barik @ Bibhar vs Surekha Kumbhar & Others
2021 Latest Caselaw 11879 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                     CRLMC NO.1801 OF 2020

                 (From an order dated 21st October, 2020 passed by the learned Asst.
                 Collector-cum-Executive Magistrate, Sambalpur in Crl. Misc. Case
                 No.480/481 of 2017 and the judgment dated 17th December, 2020 passed
                 by learned Sessions Judge, Sambalpur in Criminal Revision No.06/2020)

                        Suresh Barik @ Bibhar
                        and another                               ...        Petitioners


                                                 -versus-

                       Surekha Kumbhar & others                  ...       Opposite Parties


                        Advocates appeared in the case through hybrid mode:


                       For Petitioners                   : Mr. Tusar Kumar Mishra,

                                                   -versus-

                       For Opposite Parties             : Mr.B.Sahoo, Advocate


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                       CORAM:

                                    JUSTICE SASHIKANTA MISHRA

                                              JUDGMENT

18.11.2021.

Sashikanta Mishra,J. In the present application filed under Section 482 of Cr.P.C., the Petitioners seek to challenge the judgment dated 17th

December, 2020 passed by learned Sessions Judge, Sambalpur in Crl. Revision No.6/2020 whereby the order passed by learned Executive Magistrate on 21st October, 2020 in a proceeding under Section 145 of Cr.P.C. was confirmed.

2. The brief facts, relevant only for deciding the present case are that the Petitioners are the First Party members and the Opposite Parties are the Second Party members in a proceeding under Section 145 of Cr.P.C. pending before the learned Asst. Collector and Executive Magistrate, Sambalpur in CMC No.480/481 of 2017. Initially, on prosecution report being submitted by the I.I.C. of Hirakud Police Station on 27th October, 2017, a proceeding under Section 144 of Cr.P.C. was initiated, which was subsequently converted into the proceeding under Section 145 of Cr.P.C.

3. The dispute between the parties relates to possession over a plot of land situated at Substationpada, Hirakud. Both parties claim to be in possession over the said land. In the enquiry under Section 145 of Cr.P.C., after closure of evidence from the side of First Party Members, the Second Party members filed a petition on 21st April, 2018 with prayer to examine one Bishnu Barik as a witness. Incidentally, the said Bishnu Barik is the conducting counsel for the First Party members in the very same proceeding. Such petition was filed by contending that Bishnu Barik had scribed some agreements and affidavits on behalf of the Second Party members relating to the case land, but by disputing his identity as an Advocate and, hence, it is necessary to call him as a witness to adduce evidence with regard to the said documents. Learned

Executive Magistrate vide order dated 21st October, 2020 allowed the prayer.

4. Being aggrieved, the First Party members preferred revision being Crl. Revision No.6/2020 before the learned Sessions Judge, Sambalpur. Learned Sessions Judge, after considering the rival contentions put forth before him held that since the possession of the parties is to be decided in the Section 145 Cr.P.C. proceeding, the transactions said to have been made by the Second Party members through the instruments in question are relevant not only to maintain professional ethics but also to substantiate the said transactions. It was further held that since the seal and signature of said Bishnu Barik as appearing in the instrument in question are being disputed as fake and fraudulent, the person concerned should come to the witness box as otherwise the possibility of drawing adverse inference against him as per Section 114, Illustration (h) of the Indian Evidence Act, cannot be ruled out. Thus, learned Sessions Judge did not find any illegality in the impugned order passed by the learned Executive Magistrate. However, despite holding so, learned Sessions Judge also held that the impugned order being passed under Section 145 (9) of Cr.P.C. is in pari materia to Section 311 of Cr.P.C. and is thus, an interlocutory order against which the revision as filed is not maintainable. The Crl. Revision was thus dismissed, which is impugned in the present application.

5. Heard Mr. T.K.Mishra, learned counsel for the Petitioners and Mr. B. Sahoo, learned counsel for the Opposite Parties.

6. It is argued by Mr. Mishra that having held the revision to be not maintainable it was not open to the learned Sessions Judge to decide the matter on merits as the Petitioners could have invoked other legal remedies. But by holding the revision as not maintainable and at the same time deciding it on merits amounts to improper exercise of power by the court below. On merits, it is contended that the documents sought to be confronted to the proposed witness are photo copies, which being secondary evidence, cannot be exhibited. Therefore, in absence of the original documents, the witness cannot be called upon to prove or disprove the same. It is further contended that even otherwise, the documents in question have not been registered as per Section 17(b) of the Indian Registration Act and as per the provisions of Order 16, Rule 1 C.P.C., it is incumbent upon the concerned party to specify the relevancy of the document, which has not been done in the instant case. Mr. Mishra has relied upon the following decisions of the Hon'ble Supreme Court of India, namely, Mange Ram v. Brij Mohan and others, reported in AIR 1983 SC 925 and Kokkanda B.Poondacha and others v. K.D. Ganapathi and another, reported in (2011) 12 SCC 600 and a decision of the Andhra Pradesh High Court in the case of G.Sudhakar Reddy v. M.Pullaiah, reported in LAWS (APH)-2015-3-58 in support of his arguments.

7. Per contra, Mr. B.Sahoo has argued that the sole purpose of examining the concerned person is to ascertain as to if he is the same person who had scribed the instruments involving the case land and this is highly relevant to decide the possession of the

parties. It is also contended that the strict rules of evidence as laid down in the Evidence Act are not applicable and in any case, the provision under Section 145 of Cr.P.C. being a part of the Code of Criminal Procedure laying down its own procedure, the provisions of C.P.C. are not applicable in any manner whatsoever.

8. Undoubtedly, the proceeding under Section 145 of Cr.P.C. has been provided in the Cr.P.C. only to determine the factum of actual possession of the subject of dispute. For such purpose, the provision lays down its own procedure as delineated in sub- sections (3) to (9). Sub-section (4) provides as under:-

"(4) The Magistrate shall then, without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of order made by him under Sub-section (1), in possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under Sub-section (1), he may treat the party so dispossessed as if that part had been in possession on the date of his order under Sub-Section (1)."

9. A reading of the provision makes it clear that the Magistrate is empowered to receive all such evidence as may be produced by the

parties and also take such further evidence as it thinks necessary only to decide which of the parties was, at the date of order made by him under sub-section (1) in possession of the subject of dispute. In the instant case, the parties are in dispute relating to possession over the case land. The Second Party members claim that several agreements and affidavits have been executed concerning the case land, some of which are scribed by one Bishnu Barik. Photo copies of two such agreements have been enclosed under Annexure-8 series. Incidentally, it is submitted that the same Bishnu Barik, is also the conducting lawyer for the First Party members in the proceeding and he is said to be the scribe of the instruments relied upon by the Second Party members. So only because he is also the conducting counsel for the adverse party in the proceeding, the same shall not stand in the way of calling him as a witness in the proceeding. If it is contended that he was the scribe of the documents having direct bearing on the dispute, his status as a lawyer of the adverse party is of no consequence in this regard as he shall have to be treated as any other witness.

10. As regards the grounds urged by the Petitioners, it is seen that the learned Sessions Judge has held the revision to be not maintainable on the ground the order impugned therein was an interlocutory order and, therefore, applying the principles laid down by the Apex Court in the case of Sethuraman v. Rajamanickam; reported in (2009) 43 OCR (SC) 97, learned Sessions Judge held the revision to be not maintainable. Whether the impugned order is interlocutory in nature or not, is not in dispute before this Court. What is questioned by the Petitioners is

the decision of the learned Sessions Judge to examine and decide the revision on merits and simultaneously holding the same as not maintainable. As regards the argument regarding propriety of holding the revision to be not maintainable and at the same time deciding the same on merits, it is observed that the decision on merits is also under challenge in the present proceeding. Therefore, this Court deems it proper to confine itself to examine the correctness of the order passed on merits than on the point of maintainability since the same , per se, is not raised as the sole ground for challenging the impugned order.

11. As regards the decisions relied upon by the learned counsel for the Petitioners, a bare reading of the same reveals that they were rendered in purely civil matters governed under the provisions of the Code of Civil Procedure. In the instant case, the impugned order was passed in a proceeding under Section 145 of the Code of Criminal Procedure. As already stated, Section 145 of Cr.P.C. lays down its own procedure to which the provisions of C.P.C. have no application. For such reason, therefore, the citations relied upon by the Petitioners can be of no help to them.

12. As has already been stated herein before, the Petitioners seek to challenge the impugned order by objecting to the admissibility of the documents in question on the ground that they are photo copies and not registered. The provisions of Sections 63 and 65 of the Indian Evidence Act have been referred to in this regard. It is reiterated that the proceeding under Section 145 of Cr.P.C. is of a summary nature to which the strict rules of evidence as laid down

in the Indian Evidence Act cannot be applied. As it appears, the sole intention of the Second Party members is to bring to light the fact that certain instruments had been executed concerning the land, which was scribed by the proposed witness, and since the same can have a bearing on the factum of actual possession, there is no reason why the Second Party members should be debarred from bringing such evidence on record. Conversely, if the said Bishnu Barik had actually not scribed the documents, it is open for him to say so in the witness box. Therefore, merely by denying the assertions of the Second Party members that he was the scribe of the documents in question without actually stepping into the witness box to say so, may actually go against him as held by the learned Sessions Judge. Therefore, this Court also feels that if the instruments in question can throw light as to the factum of possession, there is no reason why the same should not be brought on record and even confronted to the scribe thereof.

13. For the foregoing reasons, therefore, this Court finds no infirmity or illegality in the order passed by the learned Executive Magistrate as confirmed by the learned Sessions Judge in the revision so as to interfere.

14. The CRLMC is, therefore, dismissed.

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Sashikanta Mishra, Judge Ashok Kumar Behera