NIRMAL KR KOTHARI Vs. SUDEB MOHAN GHOSH

JUDGEMENT

(1.) THIS petition is directed against the order dated 23rd December, 1996, passed by the learned Executive Magistrate, Sealdah, in Case No. M -144/93 (being M.P. Case No. 496 of 1986).

(2.) IT is not disputed that the opposite party Sudeb Bhusan Ghosh was a tenant in House No. 4, Dr. Suresh Sarkar Road, Police Station Entally. The present petitioner is a constituted attorney of the landlord. The landlord filed Title Suit No. 339 of 1968 and a decree for ejectment was passed and confirmed by the Appellate Court. Accordingly the landlord (which is public trust) was delivered physical possession of the house through the agency of the Court on 17.2.1986. On 25th March, 1986, the present petitioner received an information that the opposite party was trying focibly enter into the premises by breaking open the padlock. He went to the house and found that the opposite party and some unknown persons had assembled in front of the entrance and were trying to enter into the house forcibly. When the present petitioner accosted them, they become furious and abused him. The petitioner apprehended a serious breach of peace. He lodged a diary in Entally Police Station and also filed an application under section 144(2), Cr.P.C. on 27th March, 1986 in the Court of learned Executive Magistrate. The learned Magistrate instead of passing an order directed the police to enquire and report by 23rd April, 1986. When no report was received on 23rd April, 1986, the learned Magistrate adjourned the case till 20th May, 1986. On 18th may, 1986, police filed a report. The police reported that the trust was forcibly disposed by the opposite party on 19th February, 1989. The learned Magistrate instead of converting the proceeding into one under section 145, Cr.P.C., dropped the proceeding.

(3.) THE present petitioner filed Cr. Rev. No. 1147 of 1986 which was allowed on 18th September, 1986 by this Court. The matter was remanded back to the learned Magistrate for fresh decision. On 30th December, 1986, the petitioner filed an application praying for drawing up proceeding under section 145, Cr.P.C. The learned Magistrate failed to pass appropriate order the subsequently dropped the proceeding. The petitioner again moved this Court by filing Cr. Rev. 603 of 1987, which was disposed of on 26th February, 1988. The impugned order dated 6th February, 1987 was set aside and the learned Magistrate was directed to re -examine the matter in the light of the observations made in the judgment. The learned Magistrate again dropped the proceeding on 7.4.89. The petitioner again moved the High Court by filing Cr. Rev. 1270 of 1989 which was allowed on 25th January, 1993 and the matter was again remanded back to the learned Magistrate with certain directions. The learned Magistrate by the impugned order has again dismissed the proceeding on the ground that the police report dated 18.5.86 was filed long after the expiry of two months from the date of dispossession and that the police report was contradictory. He, therefore, was unable to decide as to which of the parties was in possession of the disputed property on the date of passing the order dated 25.5.93. Being aggrieved by the said order the petitioner has again come to this Court.