SWAPAN BAIDYA Vs. MD. ABDUL MANNAN MULLICK

JUDGEMENT

(1.) This application under Sec. 401 read with Sec. 482 of the Code of Criminal Procedure has been filed by the petitioners against the order dtd. 20/12/2019, thereby Learned Sessions Judge, North 24 Parganas rejected the prayer for stay of operation of the impugned order dtd. 16/12/2019 passed by the learned Sub-divisional Executive Magistrate in connection with M.P. Case No. 2201 of 2018 under Sec. 147 (3) of the Code of Criminal Procedure, directing the I/C, Deganga P.S. to remove the illegal obstruction from the 'B' scheduled suit property after converting application under Sec. 147(1) from 145 (1) of the Code of Criminal Procedure.

(2.) Case of the petitioners in short, as per pleading, is that opposite party no. 1 is trying to oust the petitioners from their possession as Squatters, where the petitioners are running tea stall as well as fish stall for more than 40 years. The opposite party no.1 also filed a Title Suit No. 1135 of 2016 together with injunction application but no injunction was granted by the learned Civil Court due to nonproduction of documents in support of his physical possession over the suit property. He is also tried to disturb the possession of the petitioners by filing several cases under Ss. 144 (2) and 107 of the Code of Criminal Procedure time to time though he has no right, title, interest or possession of the suit property.

(3.) Opposite party no.1 filed an application under Sec. 145 (1) of the Code of Criminal Procedure and subsequently sought for conversion of the said application under Sec. 147 (1) of the Code of Criminal Procedure for forceful eviction before the Learned Sub-divisional Executive Magistrate being M.P. Case No. 2201 of 2018. After hearing both the parties, the learned Sub-divisional Executive Magistrate whimsically and capriciously converted the said case from Sec. 145 (1) of the Code of Criminal Procedure to Sec. 147 (1) of the Code of Criminal Procedure and further directed the I/C, Deganga P.S. to remove illegal obstruction as per Sec. 147 (3) of the Code of Criminal Procedure immediately and to comply the said order within 15 days on 16/12/2019.