KALI PRASAD BURMAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present application under Sections 401 and 482 of the Cr. P.C. is for quashing a proceeding being C 732 of 1985 pending before the Court of Sub-Divisional Judicial Magistrate, Asansol.

(2.) The facts and circumstances relevant for this application are as follows.

(3.) On 20-3-84, one Kedar Nath Balodia filed an application under Section 144, Cr. P.C. before the Sub-Divisional Judicial Magistrate, Asansol against the present petitioner and five others. The sad application was registered as Misc. Case No. 61 of 1984. The Magistrate drew up a proceeding under Section 144, Cr. P.C. and restrained the petitioner and five others from entering into a particular land and making any construction upon the said land and from disturbing the peaceful possession of the said Kedar Nath Balodia. On 17-4-84, Kedar Nath Balodia filed another application under Sections 144/107 of Cr. P.C. which was registered as M. P. Case No. 143 of 1984. But the Id. Magistrate did not pass any order because an order under Section 144, Cr. P.C. had already been promulgated over the self-same land which forms the subject-matter of dispute. On 18-5-84, Kedar Nath Balodia Filed an application for conversion of the said proceeding under Section 144 to one under Section 145 and for attachment of the property in dispute and the ld. Magistrate by an ex parte order of that date converted the said proceeding to one under Section 145, attached the property under Section 146 and appointed the B.D.O., Kulti as the Receiver of the property. During the pendency of the aforesaid Misc. Case No. 61 of 1984, Kedar Nah Balodia filed an application under Sections 188 and 447 of the I.P.C. before the Sub-Divisional Magistrate, Asansol and the ld. Magistrate directed the Receiver, that is to say the B.D.O., Kulti, to inquire and submit a report. The B.D.O. submitted its report on 15-3-85 and the Sub-Divisional Magistrate sent a complaint before the Sub-Divisional Judicial Magistrate. On receipt of the complaint, the Sub-Divisional Judicial Magistrate took cognizance of the offences under Sections 188 and 447 of I.P.C., against the petitioner and five others and issued summons. On being summoned, the petitioner and five others duly appeared before the ld. Magistrate. One of the accused namely Jahar Prasad Barman moved an application before the High Court on 17-9-87 in Criminal Revision No. 1210 of 1987 praying for quashing the proceeding on the ground that the complaint did not disclose any offence under Section 188, I.P.C. inasmuch as in the petition of complaint there was only allegation of disobedience of the order promulgated under Section 144, Cr. P.C., but the petition of complaint did not contain any statement that such disobedience caused or tended to cause obstruction, annoyance, injury or risk etc. as contemplated under Section 188, I.P.C. A. K. Chatterjee, J., as His Lordship then was, by his order dated 3-7-90 rejected the said revisional application without going into the contention that was raised in challenging the proceeding in so far as it relates to the offence under Section 188, I.P.C. because of the fact that no ground was made out in the revisional application in assailing the legality of the prosecution so far as it involved the other offence namely the offence punishable under Section 447 of I.P.C. His Lordship gave the petitioner the liberty to agitate the ground that was taken in that revisional application with regard to the legality of the prosecution under Section 188 of I.P.C. and directed the Id. Magistrate to dispose of the proceeding with utmost expedition. Therefore, the accused persons filed a petition before the Id. Magistrate praying for quashing the criminal proceeding challenging the maintainability of the prosecution and the ld. Magistrate was of the view that the accused persons' point having been already agitated in Criminal Revision No. 1210 of 1987 before the High Court could not be allowed to be reagitated. He was also of the view that without taking evidence, the question whether a case would be sustainable under Sections 188 and 447, I.P.C. could not be decided at that stage. In such view of the matter and in view of the High Court's decision in expeditious disposal of the proceeding, the ld. Magistrate was pleased to reject the application by his order dated 30-7-91. Hence the present revisional application at the instance of one of the accused persons namely Kali Prasad Barman.