PRANAB KUMAR CHAKRABORTY Vs. MOHAMMAD AKRAM HUSSAIN

JUDGEMENT

(1.) This is a peculiar way of exercising powers under Ss. 133 and 144, Cr. P.C. by a Magistrate and the way the order has been passed I deem it proper to direct the learned district Magistrate, Gauhati to look into the matter.

(2.) The opposite party No. 1 herein filed a petition on 11-1-90 under S. 133 read with Section 144. Cr.P.C before the learned Additional district Magistrate, Kamrup at Gauhati and the petition was registered as case No. 14 M/ 90. The petition was transferred to the court of Sri J. N. Bhuyan. In the petition, the petitioner stated that he was an aged man and used to reside in the land described in the petition. It was further stated that there is a "tin Chali" wherein the opposite party ie. the petitioner before this court kept some unhygienic articles. According to the said petitioner the room was kept under lock and key for about 5 months and few days prior to filing of the said petition bad smell was coming from the said room. It was further alleged in the petition that foul play might have been committed and that the room needed immediate replacement of the Tin Chali and also necessary repairs. It was further pleaded by the petitioner in that petition that the room was urgently required for the use by his unemployed children and that whereabout of the petitioner herein was not known. It was prayed that necessary direction may be issued to the Paltanbazar Police Station to brake open the lock. make a list of the articles inside the room and to remove these articles and allow the said petitioner to use the room for his own purpose after necessary repairs and renovation. In other words in that petition the eviction of the petitioner herein was prayed through police help by invoking the provisions of Ss. 133 and 144, Cr.P.C.

(3.) On 11-1-90 the learned Magistrate drew up a proceeding under Section 1.33, Cr.P.C. directing the second party i.e. the petitioner herein to remove the goods from the room on or before 18-1-90 and to file show cause if any. It was further directed that in the event of failure to comply with the order on the date fixed, and as a measure of urgency police was to remove the goods from the room by opening the lock and making custody of goods found within the said room on the next date. On 23-1-90 the learned Magistrate perused the police report dated 19-1-90 wherein it was stated that they could not execute the order in absence of the second party i.e. the present petitioner and the room in question was under lock and key. The learned Magistrate noted that the police report was silent about the existence of goods stored in the room from where bad smell coming out as per prayer of the petitioner. Officer-in-charge. Paltanbazar Police Station was directed to submit further report accordingly. On 29- 1-90 the learned Magistrate recorded that the 1st party, was present and second party was absent without any step. The Magistrate perused the report of the Police dated 25-1-90 wherein it was stated that goods inside the room were in unhygienic condition and dangerous to life. The learned Magistrate directed as follows: