ANUP KUMAR SANYAL Vs. GAKUL BEY

JUDGEMENT

(1.) Shri Anup Kumar Sanyal, the present petitioner (hereinafter referred to as the First Party) had filed a petition under Section 145/146, Cr.P.C. against the Respondents Shri Gakul Bey (Mikir) and Shri Gopal Bey (Mikir) (both are brothers) and two others for drawing up proceedings for preventing breach of peace regarding possession of land described in the schedule to the petition. This petition was filed on 26-11-1992. The allegations made in the petition were that the first party purchased an area of 23 Bs 1 K and 5 Ls of land described in the schedule from Respondent Shri Gakul Bey by an unregistered deed dated 13-2-1990 and the vendor had delivered vacant possession of the land to the vendee first party on the same day and since then the first party was in peaceful possession of the land in question. In the petition it was alleged that the first party had grown sali paddy in the land and the same was about to be harvested and it was further alleged that on 9-1-1992 the second party the alleged vendor Shri Gakul Bey along with his men armed with deadly weapons attacked the first party while he went to the land and entered into the land for harvesting paddy by force. Proceedings under Section 145, Cr.P.C. were drawn up against them. The disputed land was attached under Section146, Cri.P.C. On 22-4-1993 the Respondent (Second party ) filed a written statement along with an application under Section 145(5) for dropping of the proceedings. The learned Executive Magistrate after considering the police report was of the view that there was apprehension of breach of peace and rejected the application filed under Section 145(5), Cr.P.C. Aggrieved by the aforesaid order a revision petition was filed and on that revision petition the learned Additional Sessions Judge, Kamrup. Guwahait remanded the proceeding to the learned trial Court to look into whether any civil suit for the same subject matter was pending. It was further directed that the Executive Magistrate would discuss the matter and pass order in accordance with law. The Executive Magistrate passed an order on 27-5-1994 wherein, it was inter alia, observed as under :-

(2.) Against the aforesaid order, the second party filed a revision petition before the Additional Sessions Judge. The same was allowed by the Additional Sessions Judge by the order dated 8-3-1995 quashing the order dated 27-5-1994. The present petition has been filed under Section 482, Cr.P.C. read with Art. 227 of the Constitution of India.

(3.) Learned counsel for the petitioner (first party) before the Executive Magistrate argued that in fact no revision petition lay before the Additional Sessions Judge in view of the provisions of sub-section (2) of Section 397, Cr.P.C., inasmuch as, the order dated 27-5-1994 was an interlocutory order and not a final order. He also submitted on merits that in T.S. No. 102/90 the parties are not the same, the plaintiffs in that suit who are 4 in number are not the parties in the proceedings under Section 145, Cr.P.C. Both party Nos. 1 and 2 are rather the defendants in the suit. The plaintiffs in that suit prayed for specific performance of an alleged contract for sale entered into between party No. 1 with the plaintiffs as attorney holder of Party No. 1 (defendant No. 1 in the civil suit). Learned counsel argued that apart, from the fact that parties to the suit are different than under the proceedings under Section 145, Cr.P.C. the subject matter is also different. The dispute in the suit is not regarding possession inter se between the parties to the proceedings under Section 145, Cr.P.C.