LALMATI DEVI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Heard the learned Advocates for the parties.

(2.) By the impugned order dated on 7-11-88 the learned Sub-Divisional Magistrate, Asansol, has filed a case under Section 144/145 of the Criminal Procedure Code. The learned Magistrate is not, however, entitled to file a case under Section 145 of the Criminal Procedure Code in the manner done by him.

(3.) It appears that in respect of plots Nos. 9 and 41 of Mouza Achra, measuring 262 acres, the petitioners husband Sew Ballak Mahata, was declared as Bargadar by the Bhagchas Officer, Salanpur on 20-4-78. It further appears that in an earlier proceeding under Section 145 of the Criminal Procedure Code at the instance of the petitioner against the deceased opposite party No.2, Nitya Tewary and others, it was decided that the petitioner was in possession of these plots Nos. 9 and 41 of Mauza Achra as well as plots Nos. 220 and 220/666 of Mouza Rangametia, measuring 2.79 acres. That order was after sale by Chhajuram Ladia to the opposite parties Nos. 3 and 4 on 20-2-1979 in respect of 4 annas share in plots Nos. 9 and 41 of Mouza Achra and the entire plots Nos. 220 and 220/666 of Mauza Rangametia. After this sale by Chhajuram Ladia to the opposite parties Nos. 3 and 4, the petitioner brought the proceeding under Section 145 of the Criminal Procedure Code in which the aforesaid order dated 23-4-1985 was passed declaring possession of the petitioner in the entire plots Nos. 9 and 41 of Mouza Achra and the entire Plots Nos. 220 and 220/666 of Mauza Rangametia. Subsequently on 25-6-1987, four deeds of transfer were executed in favour of the opposite party No.7, Salanpur Panchayat Samity. After the execution of these deeds of transfer, there was again alleged interference with the petitioners possession of these lands. The petitioner filed a second petition under Sections 144/145 of the Criminal Procedure Code in the Court of the Sub-revisional Magistrate at Asansol. On 1-11-1988, the learned Magistrate directed the O.C. Salanpur P.S. for enquiry and report. The J.L.R.O Salanpur, was also directed to enquire and report. The learned Magistrate directed for maintenance of peace and status quo in the meantime. Subsequently on 7-11-1988, after receipt of: report of the O.C. Rupnarayanpur P.S. the learned Magistrate passed the impugned order, filing the case under Sections 144/145 of Criminal Procedure Code on the ground that it appeared that the Executive Officer of Salanpur P.S. was in possession of the plot and that the petitioner was trying to create disturbance. A case under Sections 144/145 of the Criminal Procedure Code cannot be filed in the manner, as done by the learned Magistrate. A proceeding under Section 144 of the Criminal Procedure Code. The learned Magistrate did not. say as to whether the case before him was under Section 144 or under Section 145 of Criminal Procedure Code. Once a petition is filed before a Magistrate under Section 145 of the Criminal Procedure Code the learned Magistrate is to be satisfied about the possibility of breach of. the peace and if so satisfied about the possibility of breach of the peace, concerning a dispute relating to any land or water or the boundaries thereof, the learned Magistrate is to make an order in writing stating the grounds of being so satisfied and requiring the parties concerned in such dispute to put in written statements of their respective claims. Thereafter, without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute, the learned Magistrate is to peruse the written statements of the respective claims, as filed by the parties, hear the parties, record evidences to be adduced by the parties and thereafter to come to a finding about possession of any of the parties. In this case, the learned Magistrate had himself observed that the first party was trying to create disturbance. When the learned Magistrate had the satisfaction of likelihood of breach of the peace due to attempts of the first party to create disturbance, the learned Magistrate ought to have drawn a proceeding under Section 145 of the Criminal Procedure Code and to ask the parties to put in written statements for their respective claims and thereafter he ought to have proceeded with the case in accordance with law, as laid down in Section 145 of the Criminal Procedure Code. Instead of doing that, the learned Magistrate was not justified in filing the case under Section 144/145, of the Criminal Procedure Code without deciding also as to whether the case before him was under Section 144 or under Section 145 of the Criminal Procedure Code.