ABDUL MANNAN Vs. BISWANATH PAUL

JUDGEMENT

(1.) This is an application for revision of an order dated 27-1-1981 passed by the learned Executive Magistrate at Barrackpore in a proceeding under S. 145, Cr. P.C. being case No. M182 of 1973 dropping the proceedings and vacating the attachment order. Abdul Sobhan, since deceased, brother of the petitioner filed an application under S. 144 of the Code before the Sub-Divisional Magistrate, Barrackpore on 21-3-1973 alleging that the second party men were threatening to possess forcibly portions of plots Nos. 3104 and 3115 of Mouza Sultanpur within South Dum Dum Municipality of which the petitioner's mother Khadi Bibi was a Mutwalli. It was alleged that the petitioner's mother had lodged information in the local police station and informed the higher authorities of such threats, as a result of which the S.D.O. Barrackpore and Officer in charge of Dum Dum P.S. visited the locality and asked the second party men not to raise structure on the disputed land. But after some days they again threatened to take forcible possession of such land and to assault and murder the petitioner. So the petitioner had lodged information in the general diary entry of the local police station. The learned Magistrate referred the matter to the police for enquiry and report. The Police Officer submitted report on the 4th May, 1973 stating that the dispute was of a civil nature and that both parties claimed the disputed plots. He however suggested that proceeding under S. 145 of the Code might be drawn up against both the parties to maintain peace. Thereafter the learned Magistrate after considering the petitioner's application and the police report and recording his satisfaction that there was apprehension of serious breach of the peace on account of dispute between the parties concerning the aforesaid two plots of land, passed a preliminary order under S. 145(1) of the Code on 5-5-1973 drawing up proceeding under the said sub-section. By the said order he attached the disputed land to prevent breach of the peace and appointed the officer-in-charge of Dum Dum P.S. as receiver thereof.

(2.) Thereafter the parties filed written statements, documents and affidavits in support of their respective claims and the case was fixed on 10-12-1973 for hearing but on account of frequent adjournments on the prayers of the parties and transfers of Magistrates who were to deal with the case from time to time the enquiry as to possession as contemplated in S. 145(4) of the Code remained pending for over seven years. On 27-1-1981 the learned Executive Magistrate passed the impugned order vacating the order of attachment of the disputed plots and dropping the proceedings on three grounds. Firstly, according to him, as there was no mention about any breach of the peace in the police report the instant proceeding was bad in law. Secondly, neither party had made out that any apprehension of breach of peace ever existed at all concerning the subject of dispute and as the dispute was of a civil nature the court of Executive Magistrate was not the proper forum. Thirdly, apprehension of breach of the peace could not continue for over seven years and there was no evidence on record to show that any breach of peace actually took place during that period. On these three grounds, the learned Magistrate vacated the order of attachment and dropped the proceedings.

(3.) The impugned order of the learned Magistrate has been assailed on behalf of the petitioner on the grounds that it is illegal, incorrect and improper. On the other hand, it has been submitted on behalf of the opposite parties that the learned Magistrate is justified in dropping the proceeding as the petitioner did not claim actual possession of the disputed plots in his application under S. 144 of the Code and the opposite parties having shown that no dispute concerning the disputed plots exists or had existed between the parties the learned Magistrate was competent to drop the proceedings in view of the provisions of sub-s. (5) of S. 145 of the Code.