BASUDEB HALDER Vs. ASHOKE HALDER

JUDGEMENT

(1.) By this revisional application under sections 40 I and 432 of the Code of Criminal Procedure the petitioners have challenged the order dated 24.485 passed by the learned Executive Magistrate, Bongaon, in Case No. M 175 of 1985 under sections 145 and 146 of the Code of Criminal Procedure and has prayed for setting aside the said order for dropping the proceeding itself. The facts leading to the aforesaid proceedings under section 145 Cr. P.C. are as follows:

(2.) The mother of the opposite party let out the disputed two rooms contained in a tin shed and the adjacent vacant land to the petitioner No. 1 at the monthly rental of Rs. 12/- and the petitioner No. 1 is in possession of the said property. Petitioner Nos. 1 and 2 as partners who deal in ice business have their ice-store there. The owner landlord threatened to disturb the possession of the petitioners in the suit property with the help of the police. The petitioners moved the High Court under Article 226 of the Constitution of India. The High Court passed the order for maintaining the status quo regarding the disputed property and ultimately discharged the Rule by directing the petitioners to approach the civil court fur redress. The owner landlord then brought the Title Suit No. 27 of 1985 in the Court of the Sub-divisional Munsif, Bongaon, for permanent injunction restraining the petitioners from entering into the disputed property and for other reliofs. The owner landlord filed also a petition for temporary injunction and obtained the temporary injunction. The petitioners filed the Misc. Appeal No. 221 of 1985 against the order of the learned Munsif granting temporary injunction and that misc. appeal is pending in the Court of the learned District Judge. The petitioner No. 1 has however alleged that he is in actual possession of the disputed property. The opposite party No. 1 made a complaint before the local police station on 12.4.85 alleging that on the said date when he went to see his godown in the disputed property, the petitioners accompanied by others tried to assault and that there was the apprehension of severe breach of the peace. The Officer-in-Charge of the said police station submitted a report before the learned Executive Magistrate alleging that the dispute over the suit property was likely to cause breach of the peace and to prevent the loss of life the disputed property should be attached and given in possession of the Receiver to be appointed by the learned Executive Magistrate.

(3.) The learned Executive Magistrate drew up the preliminary order under section 145(1) of the Code of Criminal Procedure the considering the emergency, although the certified copy of the relevant order of the learned Executive Magistrate shows the word urgency, passed the order under section 146(1) of the Code of Criminal Procedure attaching the dispute property and appointing the Officer-in-Charge of the Police Station, Bongaon, as Receiver of the said attached property by the impugned order. Being aggrieved by such order, the petitioners have filed this revisional application for the relief as already stated. Mr. Balai Chandra Ray appearing for the petitioners has first of all submitted that in view of the prudence of the Title Suit No. 27 of 1985 over the dispute regarding the possession in the disputed property, a parallel proceeding under section 145 Cr. P.C. over the disputed of possession in respect of the self same property cannot lie and in support of his such submission he has relied on the decision in the case of Ram, Sumer Pun Mahant v. The State of A.P. and others. Mr. RayTs next submission is that the impugned order of the learned Executive Magistrate does not disclose upon what particulars or objects and under what circumstances he considered the case to be one of emergency so that he could pass the order attaching the disputed property and appointing the Receiver under section 146 Cr. P.C. and accordingly the impugned order is illegal. Mr. Ray has relied on the decision in 1978 Cr. L.J. 671 and 1985 Cr. L.J. 2. Mr. Dilip Kumar Dutt appearing on behalf of the opposite party No.1 has submitted that the decision in A.I.R. 1985 S.C. 472 is not applicable in the facts and circumstances of the present case and that the principle as laid down in 1978 Cr1. L.J. 671 and 1985 Cr1. L.J. 2 has been followed by the learned Executive Magistrate while passing the order under sections 145(1) and 146(1) and (2) Cr. P.C. after being satisfied with report of the police officer. Mr. Tapas Midhya appearing for the State has supported the submission of Mr. Dutt.