Calcutta High Court (Appellete Side)
Dhananjoy Mondal vs The State Of West Bengal & Ors on 16 November, 2009
1 IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION Present: The Hon'ble Justice Mr. Tapas Kumar Giri C.R.R. No.1529 of 2009 Dhananjoy Mondal Versus The State of West Bengal & Ors.
For the petitioner: Mr. Shyama Prasad Purkait
For the O.P. No.2 & 3: Mr. Satyajit Mondal
Mr. Suranjan Mondal
Heard on: 21.10.2009
Judgment on: November 16, 2009
TAPAS KUMAR GIRI, J.:-
This is an application under Section 482 read with Section 401 of the Code of Criminal Procedure challenging the order dated 25.03.2009 passed by learned Additional District and Sessions Judge, Fast Track, 1st Court Diamond Harbour in Criminal Motion No.66 of 2007 arising out of the order dated 25.04.2007 passed by learned Executive Magistrate, 2nd Court, Diamond Harbour in case No.M-406/1995 and MF-1470 of 1994.
2
The fact of the present application in brief is that the plot No.5218 and 5219 of Mouza Uttar Kashi Nagar P.S. Raidighi have been using as a pathway of the petitioner and his family members since 100 years. The opposite party No.2 to 4 illegally and forcibly created fence on the pathway in questions and as such there was the possibility of breach of peace in the locality. The petitioner filed an application under Section 147 Cr. P.C. before the Executive Magistrate Diamond Harbour and learned Executive Magistrate, Diamond Harbour after obtaining report from the P.S. as well as B.L.L.R.O. dismissed the application on 25.4.07.
Being aggrieved and dissatisfied against the said order dated 25.4.2007 the petitioner preferred a Criminal Motion vide Criminal Motion No.66 of 2007 and learned Additional District and Sessions Judge, Fast Track, 1st Court, Diamond Harbour after considering the submission as well as relevant records dismissed the said Criminal Motion on 25.03.09.
Being aggrieved and dissatisfied against the said order the present petitioner has filed the present application for quashing the order of learned Executive Magistrate dated 25.4.07 as well as the order dated 25.03.09 passd by learned Additional District and Sessions Judge, Fast Track, 1st Court, Diamond Harbour.
Mr. Purkait learned Advocate appearing on behalf of the petitioner pointed out that learned Executive Magistrate as well as learned Additional District Judge failed 3 to consider the reports of the B.L.L.R.O. and the O.C. of the P.S. for considering the application under Section 147 Cr. P.C. Mr. Purkait also pointed out that there was the only pathway on the above two plots for using by the petitioner and his family members since 100 years. As such both the order should be set aside and restraining order should be passed against the O.P. No.2 and 4.
Mr. Mondal learned Advocate appearing on behalf of O.P. No.2 pointed out that O.P. No.4 expired on 6.12.02 but his heirs were not added as party in this case. Mr. Mondal also pointed out that the reports of B.L.L.R.O. and the O.C. of the P.S. stood against the present petitioner and as such learned Executive Magistrate rightly refused the application under Section 147 of the Cr.P.C. and there is no ambiguity in the order of the learned Additional District & Sessions Judge passed in Criminal Motion No.66 of 2007 and as such the present application is liable to be dismissed.
I have gone through the relevant orders as well as the reports annexed in the application page 22 to page 46 of the application. It is the case of the petitioner that he along with his family members used the pathway situated on plot No.5218 and 5219 since 100 years. During that period district settlement, revisional settlement and land reform settlement were done in the locality but the petitioner failed to produce any mouza map of the above three settlement to show that there is or was the path way on plot No.5218 and 5219. The reports as stated by the petitioner clearly 4 indicated that there was no existence of pathway on the above two plots. Learned Executive Magistrate rightly observed that when there was no path way on the above two plots then there was no scope to pass any order on the basis of the application under Section 147 Cr. P.C. Learned Additional District & Sessions Judge, Fast Track, 1st Court rightly pointed out that for disposing of the application under Section 147 of the Cr. P.C. there were some requirements as mandatory and there must be definite findings of such user within the specific period. But no cogent documents were placed for establishing the right of the petitioner and his family members to use the above two plots as a pathway.
As such there is no scope to interfere in the order of the learned Executive Magistrate as well as learned Additional District & Sessions Judge, Fast Track, 1st Court, Diamond Harbour either to set aside or to modify the same.
The present application fails and it is dismissed. The application is disposed of accordingly.
Urgent xerox certified copy of this judgment be supplied to the parties, if applied for.
(TAPAS KUMAR GIRI, J.)