MOHAMMAD ALI Vs. SAFIQUL

JUDGEMENT

(1.) The petitioner by this revision has challenged the order dated July 15, 1994 passed by the learned Executive Magistrate, Islampur, District Uttar Dinajpur, in Case No. 74-MR of 1994. By the order impugned fife learned Magistrate converted the proceeding under Section 144 to a proceeding under section 145 of the Code of Criminal Procedure and attached the land in dispute under Section 146 of the Code of Criminal Procedure and directed the parties to file written statement by l0th August, 1994. He also appointed the Officer-in-Charge, Karandighi Police Station, a custodian of the land in dispute.

(2.) The short background of the case is that upon the petition of the petitioner, who is the first party in Case No. 74-MR of 1994 under section 144 of the Code of Criminal Procedure, the learned Magistrate by his order dated 19th May, 1994 drew up a proceeding ex parte upon the assertion of the said first party that he was in possession of the land in question. The Officer-in-Charge, Karandighi Police Station, was directed to maintain law end order and the Block Land and Land Reforms Officer, Karandighi, was directed to submit a detailed report on his enquiry by the date fixed. The learned Magistrate fixed 8th June, 1994 for submission of show-cause and he also restrained the opposite party members from entering the case land. It will be apposite to mention here that the parties to the said proceeding under Section 144 of the Code of Criminal Procedure are brothers. It further appears from the order dated 30th May, 1994 that the second parties filed a petition for vacating the interim order before the learned Magistrate, asserting that they were in possession of the land in question. That petition of objection was tagged with the proceeding and treated as show-cause. Both the petitions were directed to be heard together on 1st June, 1994. On that date the learned Advocate for the opposite party members prayed for time. It appeared further from the order dated 15.6.94 that the opposite party members by filing a petition cited the mother of both the parties as witness. On 22nd June, 1994 both the parties appeared through their learned Advocates and both the parties were heard on 13th July, 1994 as it appears from the order of that date. On 15th July, 1994 the mother appeared in Court in person and affirmed an affidavit wherein she alleged that she is the owner of the property and she has not executed any deed of sale in favour of anybody, not to speak of the petitioner, but the entrusted the opposite parties Nos. 2 and 3 to look after the disputed property on her behalf because of her old age. According to the petitioner, the land belonged originally to the mother but she sold the land in his favour. It further appears from the order dated 15th July, 1994 that the petitioner herein moved this Court in its writ jurisdiction against recording of the name of the opposite party members in the land revenue records and the High Court directed maintenance of status quo in respect of the said land. As there was dispute regarding possession of the land, the learned Magistrate in consideration of the affidavit filed by the mother of both parties, the petition, the objection of which was treated and the submissions as made by both the parties, opined that in the absence of the evidence it cannot be decided who is actually in possession of the property and for that he converted the proceeding under Section 144 of Cr. PC, to one under Section 145 Cr. P.C. and attached the disputed property in exercise of his power under Section 146 of the Code of Criminal Procedure and appointed the Officer-in-Charge, Karandighi P.S. as custodian of the property in dispute.

(3.) Appearing for the petitioner, Mr. Sudipto Moitra, learned Advocate, contended that the learned Magistrate, without considering the show-cause as it was not filed and without any evidence on record, converted the proceeding under Section 144 Cr. P.C. to a proceeding under Section 145 Cr. P.C. and also attached the property under Section 146 Cr. P.C. and appointed the Officer-in-Charge, Karandighi Police Station, as custodian of the property.