Calcutta High Court
Debasis Banerjee vs State Of West Bengal And Anr. on 30 April, 1992
Equivalent citations: (1993)2CALLT170(HC)
JUDGMENT Sunil Kumar Guin, J.
1. This revision is directed against the order passed by the learned Additional Chief Metropolitan Magistrate on 19.9.90 in G.R. Case No. 644 of 1990 arising out of Case No. F-90 dated 22.3.90 whereby he directed the I.O. concerned to hand over the key in question to O.P. No. 2 Saumya Dutta and also directed the present petitioner to seek his relief in the title suit filed by Saumya Dutta in the City Civil Court. This revision is also directed against the order passed by the said Magistrate on 21.9.90 in the same case whereby he rejected the prayer for stay of the operation of the earlier order.
2. This revision has been resisted by Saumya Dutta, opposite party No. 2 and also by the State of West Bengal, opposite party No. 1.
3. The petitioner's case in short is that the disputed premises at 16, Gopal Bose Lane belongs to his grandmother Brindarani Debi who filed a suit, being Ejectment Suit No. 493 of 1988 against her son Baidyanath Banerjee and got a decree on 17.2.89, that by putting the said decree into execution in Ejectment Execution Case No. 72 of 1989, she got delivery of possession of the decretal premises on 24.2.90 through the Court with the help of the police, that the said premises was allotted in favour of the petitioner Debasis Banerjee who had been carrying on his business after obtaining necessary trade licence and other licence in his name. His further case is that on 22.3.90 the opposite party No. 2 along with the others forcibly entered into the disputed premises by breaking the padlock, that over this forcible possession his father Baidyanath Banerjee lodged an F.I.R. on 22.3.90 with the Police Officer, that such an F.I.R. gave rise to Case No. F-90 dated 22.3.90, that on the same day the Police Officer arrested the opposite party No. 2 and others in connection with the aforesaid case and kept the said premises under lock and key and that on 24.90 he filed the petition before the learned Addl. Chief Metropolitan Magistrate for return of the key.
4. On the other hand, the case of the opposite party No. 2, in short, is that he is a tenant under Brindarani Devi in respect of the disputed premises since 1.4.86 at a rental of Rs. 325/- per month and amicably paid rent to her up to July 1988, that as the landlady refused to accept rent, he has been depositing rent with the Rent Controller since August 1988, that the decree as obtained by Brindarani Devi is collusive and fictitious and is not binding upon him, that as the possession of the disputed premises was obtained by the landlady in execution of a fictitious decree which is not binding on him, he removed the padlock at the main entrance of the disputed premises on 24.2.90 and had been in possession thereof till the Police Officer put a padlock on the door of the said premises. His further case is that as there was apprehension of breach of peace he filed application under Section 144(2) of the Code of Criminal Procedure against Brindarani and others on 1.3.89 and also on 22.3.90 when the learned Executive Magistrate directed the parties to maintain status quo in respect of the disputed premises. So he filed an application for return of the key of the lock that was put by the Police Officer on the door of the disputed premises.
5. On consideration of the materials as placed before him, the learned Addl. Chief Metropolitan Magistrate by his order dated 19.9.90 appears to have held that Saumya Dutta opposite Party No. 2 is a tenant of the disputed premises where he has been running his business and directed return of the key to him. But he directed the present petitioner to seek his relief in the title suit filed by Saumya Dutta in the City Civil Court. By order dated 21.9. 90 he appears to have rejected the petitioner's prayer for stay of operation of the earlier order.
6. Being aggrieved the present petitioner Debasis Banerjee has filed the instant revision challenging the legality and propriety of the said order. Mr. Shekhar Kumar Basu, learned advocate appearing on behalf of the petitioner has argued that as the key in question was not at all seized by the Police Officer the provisions of Section 457 of the Code of Criminal Procedure are not at all applicable and that the learned Addl. Chief Metropolitan Magistrate has committed an error in invoking the said provision and in directing return of the said key to the opposite party No. 2. He has also contended that the dispute between the parties is of civil nature, that opposite party No. 2 had already filed a suit being Title Suit No. 605 of 1990 in the City Civil Court for declaration of his tenancy right over the disputed premises and for mandatory injunction for return of the said key to him and other reliefs that though he directed the petitioner to seek his relief in the said suit but he erroneously directed return of the key to the opposite party No. 2 at whose instance the said suit was filed. He has also argued that since the charge-sheet has already been submitted against the opposite party No. 2 and others for commission of offence of criminal trespass in respect of the disputed premises and since the learned Magistrate had already taken cognizance on such charge-sheet, it will not at all be proper to direct return of the key of the premises to opposite party No. 2 who is said to have committed the said offence of criminal trespass in respect of the said premises. He has further argued that in view of the provision of Section 310 of the Code of Criminal Procedure it will not be proper to hand over the key to the accused in respect of the premises in which he is alleged to have committed the offence.
7. Mr. Arun Prakash Chatterjee, learned senior advocate appearing for the opposite party No. 2 has argued that since the Police Officer removed the padlock of the opposite party No. 2 from the gate of the disputed premises and put his own lock at the gate, the entire process constitutes seizure of key and padlock from the constructive possession of the opposite party No. 2 and that as such provision of Section 457, which should be given a wider meaning, are applicable in the instant case. In support of his view he has referred to the decision in the case of Emperor v. Haribandhu Patro reported in AIR 1948 Patna 180 and in the case of A. R. Singh v. Rajbahadur Singh and Ors. reported in 69 CWN 663. He has further argued that since the opposite party No. 2 is entitled to possession of the disputed premises, the learned Addl. Chief Metropolitan Magistrate has rightly exercised his discretion in directing return of the key to the opposite party No. 2.
8. Mr. Chakraborty, learned advocate appearing for the State has, however, conceded that Section 457 is not applicable to the instant case but he has contended that as the Police Officer acted with highhandedness the Court Under Section 482 of the Code of Criminal Procedure has got ample power to correct such highhandedness.
9. The learned Addl. Chief Metropolitan Magistrate appears to have passed the impugned order under the provision of Section 457 of the Code of Criminal Procedure which, inter alia, provides that whenever the seizure of property by any Police Officer is reported to Magistrate under the provision of this Code, and such property is not produced before a Criminal Court during enquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or delivery of such property to the person entitled to the possession thereof. So, in order to invoke the provision of Section 457 three conditions are to be fulfilled. Firstly, there must be the seizure of the property, secondly the such seizure has been reported to the Magistrate and thirdly the seized property has not been produced before the Criminal Court during an enquiry or trial. There is nothing on record to indicate that the key in question was ever seized by the Police Officer. The report of the Police Officer dated 23.3.90 shows that on receipt of an information the Police Officer had been to the disputed premises on 22.3.90 at about 15.00 hours and found a serious tension prevailing there, that on the complaint of Baidyanath Chatterjee, Section-F Case No. 90 dated 22.3.90 Under Section 147/448 of I.P.C. was recorded, that Saumya Dutta and others who were inside the premises were arrested, that as serious tension over possession of the said premises was prevailing and as there was every possibility of a clash involving the entire locality, the Police Officer locked the premises and posted a police picket to maintain peace and order in the area. There is nothing in this report to indicate that Police Officer removed the padlock that was put by the opposite party No. 2 and seized the said padlock and key belonging to the opposite party No. 2. The report, on the other hand, indicates that since the accused persons were arrested from inside the disputed premises and since there was serious apprehension of breach of peace over the possession of the disputed premises the Police Officer put his own lock and key on the disputed premises and also posted a police constable to maintain peace and order in the locality. So it cannot be said that the Police Officer ever seized any padlock or key of the opposite party No. 2 nor can it be said that by putting his own lock and taking the key with him the Police Officer seized that key from constructive possession of the opposite party No. 2, as has been contended on his behalf. In this connection Mr. Chatterjee has referred to the decision in the case of Emperor v. Haribandhu Patro (supra) and in the case of A. R. Singh v. Rajbahadur Singh (supra), the principles as enunciated in the aforesaid reported cases have not been disputed by the learned advocate appearing for the petitioner but he has submitted that said decisions are of no help in determining the question whether the key had been seized by the Police Officer from the possession of the opposite party No. 2. Having gone through the aforesaid decisions I am also of the opinion that the said decisions are of little help in determining the question whether or not the key was seized from the constructive possession of the opposite party No. 2. So, I am unable to agree with the view of Mr. Arun Prakash Chatterjee that the key in question was seized by the Police Officer. Since there was no seizure of any key as contemplated Under Section 457 the learned Addl. Chief Metropolitan Magistrate was not at all justified in invoking the provision of the said Section and in directing the return of the key to the opposite party No. 2.
10. For argument's sake let me assume that Section 457 applies. Then let me consider whether or not the learned Addl. Chief Metropolitan Magistrate was justified in directing delivery of the key to the opposite party No. 2. It appears that Brindarani Devi the grandmother of the present petitioner filed a suit being Ejectment Suit No. 493/1988 against her son Baidyanath Banerjee and got a decree on 17.2.89 and that by putting the said decree into execution she got possession of the disputed premises through Court with the police help on 24.2.90. That the said landlady took possession of the disputed premises through the Court on 24.2.90 has not been disputed by the opposite party No. 2. His contention is that he is still a tenant in respect of the said premises under said Brindarani Devi and that as the said decree was fictitious and collusive and as he was not a party to that suit, he after obtaining legal advice removed the padlock at the main entrance of the disputed premises and took possession of the disputed premises on 24.2.90. Though there is difference as to date when the opposite party No. 2 forcibly entered into the disputed premises by breaking the padlock, but it is not disputed that after delivery of possession in execution of the said decree the opposite party No. 2 forcibly entered into the said premises by breaking the lock. Undoubtedly there was serious apprehension of breach of peace over the possession of the disputed premises and that is why both sides filed applications Under Section 144 of the Code of Criminal Procedure and over such forcible possession of the disputed premises by the opposite party No. 2, a case was started Under Sections 147, 448 etc. of I..P.C on a complaint lodged by Baidyanath Banerjee the son of said Brindarani Devi on 22.3.90 and this gave rise to Case No. F-90 dated 22.3.90 and G.R. Case No. 644 of 1990. The opposite party No. 2 filed a suit being Title Suit No. 605/90 in the City Civil Court for declaration of his tenancy right over the disputed premises and for mandatory injunction for return of the key to him and for certain other consequential reliefs. It seems that the opposite party No. 2 was well aware that the dispute between the parties could not be finally decided by the Criminal Court and that is why he filed the civil suit. As the dispute between the parties was of civil nature and as the opposite party No. 2 had already filed the suit in the City Civil Court for appropriate relief including return of the said key, the learned Addl. Chief Judicial Magistrate in the facts and circumstances of the case should have also directed the opposite party No. 2 to seek his appropriate relief in the Civil Court in the manner he has directed the petitioner to seek his relief in the said suit. As he has directed the petitioner to seek his appropriate relief in the civil suit filed by the opposite party No. 2, I see no reason why the opposite party No. 2 also should not be directed to seek his relief in the said suit. So in the facts and circumstances of the case the learned Addl. Chief Metropolitan Magistrate does not appear to have rightly exercised his discretion in directing delivery of the said key in favour of the opposition party No. 2.
11. That apart, the opposite party No. 2 and some other persons are alleged to have committed an offence of criminal trespass in respect of the disputed premises punishable Under Section 448 of I..P.C. and certain other offences. Investigation has been completed and the charge-sheet has already been submitted. The learned Magistrate has already taken cognizance. So it prima facie shows that the opposite party No. 2 has committed an offence of criminal trespass in respect of the disputed premises. The case is still pending. The accused persons were not discharged and acquitted as yet. In the circumstances it will not be proper to direct delivery of the key of the disputed premises to the opposite party No. 2 who is said to have committed an offence of criminal trespass in respect of the said premises.
12. In this connection the learned advocate for the petitioner has drawn my attention to Section 310 of the Code of Criminal Procedure which inter alia provides that any Magistrate may at any stage of enquiry trial or other proceeding after due notice to the parties visit and inspect any place in which an offence is alleged to have been committed. He has argued that if the key is handed over to the accused opposite party No. 2 and if he is put into possession of the premises in respect of which the offence has been committed, then the purpose of Section 310 would be totally frustrated. This argument of the learned advocate for the petitioner is of definite force and in the facts and circumstances of the case I am of the opinion that the accused, till disposal of the case against him, should not be put into possession of the premises in respect of which he is alleged to have committed an offence.
13. Mr. Chakraborty the learned advocate appearing for the State has argued that the Police Officer acted with high-handedness inasmuch as he put the disputed premises under lock and key and thereby dispossessed' the opposite party No. 2 though there was definite direction by the competent Court on 22.3.90 on an application Under Section 144(2) of the Code of Criminal Procedure filed by the opposite party No. 2 that parties would maintain status quo in respect of the disputed premises. It is true that by an order dated 22.3.90 on an application Under Section 144(2) filed by the opposite party No. 2 the learned Executive Magistrate directed parties to maintain status quo. But on the same day a petition of complaint was lodged by Baidyanath Banerjee and it gave rise to Case No. F-90 dated 22.3.90 Under Sections 147, 448 etc. of I..P.C. On the basis of such complaint of cognizagle offence the Police Officer arrested the accused persons from inside the disputed premises. It appears from the police report that as serious tension was prevailing over the possession of the disputed premises and, as there was every possibility of a clash involving the entire locality over possession of the disputed premises, the said Police Officer locked the premises and posted the police picket in order to maintain peace and order. Such an action in my opinion does not amount to any act of highhandedness and under the provision of Section 149 of the Code of Criminal Procedure the Police Officer can take such action to prevent the commission of any cognizable offence. So in the facts and circumstances of the case it cannot be said that the Police Officer acted with any highhandedness for which any interference from the Court is necessary for correction of such highhandedness.
14. So, in the facts and circumstances of the case and in view what have discussed above, the learned Addl. Chief Metropolitan Magistrate was not at all justified in directing delivery of the key to the opposite party No. 2 and he should have also directed the opposite party No. 2 to seek the appropriate relief in the title suit filed by him in the City Civil Court. In that view of the matter, the revisional application is allowed. The impugned orders are set aside. The opposite party No. 2 is, however, at liberty to seek his appropriate relief in the title suit that has been filed by him in the City Civil Court. Application for vacating or modifying the interim order dated 5.10.90 is also dismissed. Let a copy of this order together with the case record be sent down to the Court below as expeditiously as possible.