SHYAMCHAND MONDAL Vs. ANUP KUMAR HALDAR & ANR.

JUDGEMENT

(1.) Order dated 03.02.2009 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Lalbagh in Criminal Motion No. 8 of 2008 affirming the order dated 23.10.2007 passed by the Executive Magistrate in case no. 1092 of 2003 under section 133 of the Code of Criminal Procedure has been challenged.

(2.) It appears that the proceeding under section 133 of Cr.P.C. was initiated at the behest of the opposite party no. 1 in respect of the land schedule pertaining to Khatian No. 1, Plot No. 231/5 and also in respect of the Plot no. A-7 in the nature of 'Rasta' described in 'Kha' schedule property. During the pendency of the said proceeding, an amendment application was filed by the opposite party no.1 which was allowed by the learned Executive Magistrate by the impugned order dated 29.01.2008. By the said amendment other adjoining plots of land were also included in the schedule of the said petition. Such amendment was challenged by the petitioner before the revisional court in Criminal Motion No. 08 of 2008. The revisional court by the impugned order dated 3.2.2009 has dismissed such application. Hence the instant petition.

(3.) Mr. Baidurya Ghosal, learned counsel appearing for the petitioner, submitted that there was no scope for amending the petition filed under section 133 of Cr.P.C. He accordingly submitted that the scope of the inquiry under section 133 Cr.P.C. could not be enlarged in such a fashion and that too to the prejudice of the petitioner. I have considered the materials on record. I find that initially the proceeding was instituted in respect of a schedule of property part of which has been claimed to be a "rasta". Undoubtedly, the petitioner is entitled to dispute such claim before the learned Magistrate in the course of the proceeding. Other adjoining plots of land were sought to be included in the schedule of the proceeding by taking out the amendment petition which was allowed by the courts below. Mr. Ghosal strenuously argued that the proceeding under section 133 Cr.P.C. cannot be said to be civil in nature inasmuch as in conclusion thereof a person is directed to execute a bond the breach whereof attracts penal consequences including imprisonment. No doubt, a proceeding under section 133 Cr.P.C. has some coercive import.