SUKUMAR DAS Vs. BHOLANATH SHIL

JUDGEMENT

(1.) This revisional application under Section 397 read with Sections 401 and 382 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) has been filed by two petitioners Sukumar Das and Smt. Ratna Mitra against opposite party no. 1 Bholanath Shil and the State challenging the judgment and order dated 15th March, 2013 passed by learned Additional Sessions Judge, Newly Created Court, Cooch Behar in Criminal Revision No. 18 of 2012 setting aside the order dated 21.02.2012 passed by learned Sub -Divisional Magistrate, Cooch Behar Sadar in a proceeding under Section 147, Cr.P.C. being M.R. Case No. 26 of 2012. The case relates to a dispute regarding user of a passage between the petitioners and opposite party no. 1. Petitioners claimed their right to use the passage as their ingress and egress but the opposite party no. 1 created obstruction keeping bye cycle, motor cycle etc. in his business and on that issue the appreciation of the breach of peace arose.

(2.) On 25.01.2012 the petitioners filed the application under Section 147, Cr.P.C. in the Court of learned Sub -divisional Magistrate. On that date on perusal of the application learned Magistrate directed the I.C. Kotwali P.S. Cooch Behar to cause an enquiry regarding law and order situation and to submit his report by 21.02.2012 with a further direction upon the I.C. Kotwali P.S. to maintain peace. Learned Magistrate passed order "Now therefore, I do hereby promulgate this preliminary order in exercise of the power vested in me u/s 147 Cr.P.S. prohibiting the OP members to keep any movable and immovable things like cycle, motor cycle etc. in the scheduled mentioned above till next date of hearing".

(3.) Order was passed for issuing summons upon the opposite party of that case fixing the next date 21.02.2012. On 21.02.2012 both the parties appeared before the learned Magistrate. Learned lawyer for the petitioners put up statement of petitioners reiterating the statements made in application u/s 147, Cr.P.C. on oath and learned lawyer for the opposite party in his objection outright ruled out the claim of the petitioners and stated that the disputed land/lane is a part and parcel of his own residential homestead land and business place which was purchased by the O.P. members more than 40 years ago. Learned lawyer also put forward before the learned Magistrate that one civil suit T.S. No. 23/02 is pending in the Court of Civil Judge (Junior Division), Sadar, Cooch Behar. Learned Magistrate held, "Whereas I am of the opinion that the likelihood of breach of peace is the fundamental jurisdiction of the Executive Magistrate to intervene and act upon in such a way which ultimately paves the way to prevent any untoward incidence in the locality and peace and tranquillity is maintained in the locality. From the arguments from the petitioner side and counter arguments from the OP side as well as from the police report I do not have any iota of doubt that the situation over the area involving the suit pathway is tensed enough to breach public peace and tranquillity although this may be apparently estimated as private dispute. Therefore I am satisfied to hold that there is sufficient ground for proceedings and immediate prevention is desirable to maintain peace and tranquillity and mere pendency of a Civil suit does not restrict me to rise on the occasion and keep my eyes closed therefore, I have promulgated preliminary order on 25.01.2012 in exercise of the power vested in me u/s 147 Cr.P.C. prohibiting the OP members to restrain them to keep the Bi Cycles and Motor Cycles this path and this order in the nature of Status quo and that in any way is not truncating the proceedings of the Court above".