Calcutta High Court (Appellete Side)
Re: Basir Ansari @ Ansary & Ors vs Bauri ... For The Opposite Party No.2 & 3 on 4 April, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1 4.2013 C.R.R. No. 3922 of 2011 rt No.30 m No.12 Re: Basir Ansari @ Ansary & Ors. ... Petitioners Mr. J.N. Chatterjee Mr. Falguni Bandyopadhyay ... for the petitioners Mr. Sumanta Chakraborty Mr. V. Bauri ... for the Opposite party no.2 & 3 The order dated 11th August, 2011 passed in Criminal Revision No.25 of 2010 has been challenged before me.
The petitioners claim that they are the owners of the tank in question. They further claim that they are in possession of the tank. According to them, the opposite parties have no right, title and interest in the tank and they are not entitled to carry out pisi culture in the said tank. It is their submissions that the agreement submitted before the learned courts below did not relate to the tank in question. They further submit that B.L.&L.R.O was not the competent authority to decide the issue of apprehension of breach of peace.
Learned counsel appearing for the opposite parties submits that they are in possession of the tank and have valid documents in support thereof. The learned counsel also submits that although section 144 of the Code of Criminal Procedure has been quoted but the learned Magistrate exercised powers under section 145 Cr.P.C. and the same would be evident from the impugned order itself. He further submits that mis-quoting of provision of law would not invalidate the order impugned. He also submits that the learned Executive Magistrate has rightly exercised his power under section 145(8) Cr.P.C. in disposing of the fish in question and directed the proceeds to be kept by the receiver pending adjudication, failing which the fish would have decayed. He submits that enquiry is still pending before the learned Magistrate.
Having considered the rival submissions, I am of the view that although section 144 Cr.P.C. has been quoted in the order of the learned Executive Magistrate, there is no doubt that the learned Executive Magistrate initiated proceedings under section 145 Cr.P.C. The documents on record show that there was apprehension of breach of peace and the same is also evident from the report of the B.L.&L.R.O. The contention of the learned counsel of the petitioners that B.L.& L.R.O is not a competent officer in that regard cannot be accepted. That apart, there was no clarity from the 2 materials on record that who actually is in possession of the tank. The evidence was required to be led for that purpose in the enquiry. The learned Executive Magistrate has rightly exercised his power under section 145(8) Cr.P.C. to ensure that the fish, which is subject to quick decay, is not wasted and the sale proceeds are preserved. Impugned order passed by the learned Magistrate which has been affirmed by the Revisional Court is clearly within jurisdiction and does not require interference in exercise of my inherent powers.
I, however, clarify that the learned Magistrate has not come to any final opinion as to who is in actual possession of the tank in question. The enquiry is still pending and the parties are at liberty to adduce evidence including documents in support of their claim. Upon such evidence being adduced by the parties, the learned Executive Magistrate will proceed to further enquiry and independently come to a finding without being influenced any observation in the impugned order. Such enquiry is to be completed within three months from the date of communication of this order. In conclusion of the proceeding, the learned Magistrate will pass appropriate order with regard to the sale proceeds which are kept in the possession of the Prodhan. Needless to mention, that any order passed by the learned Magistrate would be subject to any order passed by a Civil Court of competent jurisdiction over the self-same dispute.
With the aforesaid observation, the revisional application is disposed of.
(Joymalya Bagchi, J)