NITYA RANJAN DUTT Vs. GITA RANI

JUDGEMENT

(1.) This revisional application arises out of an order passed by the learned Sub- Divisional Magistrate Rampurhat, in a case under section 144 Cr. P.C.

(2.) It appears that on 25.5.1985, the opposite party No. 1, Gita Rani Boral, filed a petition under section 144 Cr. P.C. against the petitioner, Nitya Ranjan Dutta, in the court of the learned Sub- Divisional Magistrate, Rampurhat. The learned Magistrate perused the petition and was satisfied about apprehension of serious branch of peace over the possession of shop situated on the disputed plot No. 65 of Mouza Bhadiswar. By that order dated 25.5.1985, the learned Sub- Divisional Magistrate, Rampurhat drew up a proceeding under section 144 Cr. P.C. against both the parties, restraining them from entering into the disputed shop complot. The learned Magistrate directed that if aggrieved by that order; the parties could show cause by 15.6.1985. The petitioner showed cause on 15.6.1985. Prior to the showing of cause by the petitioner, the opposite party No. 1 filed a petition on 3.6.1985 for vacating the proceeding against her. The learned Magistrate sent that petition filed by the opposite party No. 1 on 3.6.1985 to the officer in-charge, Murarai P.S. who was directed to enquire and to send a report as to possession and as to whether there was apprehension of breach of the peace. The case was fixed by that order on the date fixed (15.6.1985). There was no police report on 15.6.1985. The officer in charge, Murarai P.S. prayed for time. Accordingly, by an order passed on 15.6.1985, the learned Magistrate fixed the case on 5.7.85 for report and hearing. Instead of taking up the matter for hearing on 5.7.1985, the learned Magistrate took up the case record on 18.6.85 on the prayer of the opposite party No. 1. The police report was submitted on 17.6.1985. After perusing that report of the Police and hearing the learned Advocate for the opposite party No. 1, the learned Magistrate was satisfied on 18.6.1985 that the opposite party No. 1 was in possession of the disputed premises. On 18.6.1985, the learned Magistrate discharged the opposite party No. 1 from the proceeding under section 144 Cr. P.C. with direction that the proceeding would continue against the petitioner. By that order dated 18.6.1985, the learned Magistrate directed the officer in-charge, Murarai P.S. under whose custody the premises was then lying, to make over possession of the premises to the opposite party No. 1, on proper inventory of the articles inside the premises. This order was carried out by the officer incharge, Murarai P.S. and the possession of the premises was made over to the opposite party No. 1. Subsequently, on 24.6.1985, the petitioner moved this court against the orders passed by the learned Magistrate on 25.5.1985, 3.6.1985, and 18.6. 1985. A Rule was issued and ad interim stay of operation of these orders dated 25.5.1985, 36.1905 and 18.6. 1985 was granted by this court till the disposal of the rule. Thereafter two applications were filed. One of these applications was by the petitioner who prayed for passing a further interim order directing the opposite party No. 1 to place the disputed show room together with the properties or articles mentioned in the list of inventory made by the police on 19.6.1985 in the custody of the officer in-charge, Murarai P.S. and to restore the position as it obtained prior to 18.6.1985, when the learned Magistrate discharged the opposite party No. 1 from the proceeding under section 144 Cr. P.C. The other application has been filed by the opposite party No. 1 with a prayer for vacating or modifying the ad interim order of stay passed by this court on 24.6.1985, as the petitioner may be trying to occupy the disputed show rooms forcibly and illegally in pursuance of the order of ad interim stay by which all further proceedings in the court of the learned Magistrate in the case have also been stayed by this court. Both these applications as well as the rule have been heard together, as desired by both the parties.

(3.) The contention of Mr. Sen Gupta, learned Advocate for the petitioner, is that the impugned order dated 18 6. 1985, passed by the learned Magistrate is an illegal order, inasmuch as the petitioner was no heard after he showed cause on 15.6.1985. It is alleged that in the police report dated 17.6.1985, there is no mention about any apprehension of the breach of the peace regarding possession of the disputed show rooms. As the officer in charge Murarai P. S. has made over possession of the premises to the opposite party No. 1 on the has is of the order dated 18.6.1985, Mr. Sen Gupta contends that the possession of these show rooms should be with the officer incharge, Murarai P. S. till the disposal of the rule. To support his contention, Mr. Sen Gupta has relied on several cases. According to him, an order under section 144 Criminal Procedure Code does not confer any power on the executive Magistrate to adjudicate or decide dispute of a civil nature or question of title to property or entitlements to rights. This is also the view of the Supreme Court in the case of Gulam Abbas v. State of U.P.1. Mr. Sen Gupta contends that though the period of two months mentioned in section 144(4) Criminal Procedure Code has since expired from the making of the initial order dated 25.5.1985, by the learned Magistrate, this court can nevertheless interfere with the impugned order dated 18.6.1985. To support this contention, Mr. Sen Gupta has referred to the case of Lakshman Hermul v. Mannan Mollah2. According to Mr. Sen Gupta, this court can restore possession of the disputed show rooms to the officer in charge, Murarai P.S. on the basis of the decisions in the cases of Bhagwandas v. Dhanmelal3 and Ganga Cold Storage Co. Ltd. v. State of West Bengal4. Me. Sen Gupta has also referred to the case of Rabindra Kumar Mitra v. State of West Bengal5 and has argued that section 144 Criminal Procedure Code cannot be intended to give undue advantage to one of the contending parties against the other.