RABINDRA, KUMAR BHATTACHARJEE Vs. DHARMA GOUR

JUDGEMENT

(1.) TO appreciate the legal point involved in this reference made by the Additional Sessions Judge, Tripura, under Section 438 Criminal Procedure Code, the relevant facts must be briefly set out. The revision petitioner Rabindra Kumar before the Additional Sessions Judge complained to the Officer -in -charge of the police station at Dharmanagar that there was apprehension of breach of peace in respect of 5 kanis of land situate in village Dewan Pasha. That Officer -in -Charge made inquiry into that complaint and then submitted a report to the Magistrate First Class, Dharmanagar, on 23.11.1968, stating that there was actually an apprehension of breach of peace over the possession of the land mentioned between Rabindra Kumar on one hand and Dharma Gour and his seven associates, the respondents herein, on the other. The learned Magistrate passed preliminary order under Sub -Section (1) of Section 145 Criminal Procedure Code on the same date and simultaneously directed attachment of the land. He issued notices to the two parties calling upon them to put in written statements, affidavits and documents in support of their rival claims by 17.12.1968. On 28.11.1968 Rabindra Kumar, mentioned as first party in the preliminary order, moved an application praying to the Magistrate for sale by auction of the crops then standing on the land in dispute. Notice of this application was issued to the second party for 2.12.1968.

(2.) AGGRIEVED by that order of the Magistrate, Rabindra Kumar took the matter in revision to the Court of Session. The revision petition came up for hearing before Shri S.M. Ali, the Additional Sessions Judge, who, by his order dated 29th of May, 1970, has made a reference to this Court recommending that the order dated 11.12.1968 of the Magistrate should be quashed and the case remitted to him with the necessary directions.

(3.) SHRI R. Ghosh, representing the revision petitioner, submitted that his client having not been afforded an opportunity to argue the petition made by Dharma Gour for cancellation of the preliminary order and dropping the proceedings, the impugned order must be set aside and the case remanded to the Magistrate for proceeding therewith according to the provisions of law. Another point raised by Shri Ghosh was that while dropping the proceedings under Sub -Section (5) the Magistrate has no jurisdiction to give a finding which one out of the parties in contest was in possession of the land on the date of the preliminary order or to declare that that party shall continue in possession until evicted therefrom in due course of law.