Calcutta High Court (Appellete Side)
Sanjib Maity & Ors vs State Of West Bengal & Ors on 17 May, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present : The Hon'ble Mr Justice Jayanta Kumar Biswas
W.P.No.8368(W) of 2011
Sanjib Maity & Ors.
-vs-
State of West Bengal & Ors.
Mr. Asis Bhattacharya ....for the petitioners
Mr. P.R. Mondal
Ms. Bandana Das ....for the State
Heard on : May 17, 2011
Judgment on : May 17, 2011
The Court : The petitioners in this art.226 petition dated May 12, 2011
are seeking the following principal reliefs:
"(a) A Writ in nature of mandamus commanding the respondent authority
to restore the possession of the petitioner house which was dispossessed by respondent no. - 4 and 5 illegally.
(b) A writ in the nature of certiorari commanding the respondent authority to restrain any such harassing your petitioner at the instance of the respondent no. - 6 who is a stranger and has bad influence with respondent no.
- 4 and 5 in enjoying the peaceful possession of the petitioner at the premises no.
- Satyajit Park PS Thakurpukur Kolkata 700 063."
The petitioners claim that they were in possession of the property in question that they purchased from the husband of the private respondent. They are alleging that on the basis of certain orders passed under s.144 CrPC at the instance of the private respondent the police ejected them from the premises at a time when operation of the order concerned made in the s.144 proceedings was stayed by the District Judge before whom they moved a revision application and a suit filed by them was pending before the Civil Court.
Counsel submits that during operation of the order of stay passed by the District Judge the police alleging that the petitioners committed offence under s.188 IPC could not eject the petitioners in execution of any order passed under s.144 CrPC. He invites me to pass an order directing the police to give the petitioners possession of the property.
In my opinion, the petitioners' remedy, if any, was before the Civil and Criminal Courts. The first petitioner had filed the suit against the private respondent before the private respondent instituted the s.144 proceedings. In the suit the first petitioner prayed for an order restraining the defendants therein from taking possession of the property in question. The private respondent's husband is the proforma defendant in the suit.
If in execution of s.144 order the police wrongfully dispossessed the petitioners of the property, in my opinion, instead of approaching the High Court under art.226, they ought to have approached the Court passing the s.144 order or the Court that stayed the operation of the order concerned passed under s.144. Whether the police were justified in taking steps for initiating prosecution under s.188 is not to be examined by the High Court under art.226. That is to be examined only when the prosecution is instituted.
For these reasons, the petition is dismissed. No costs. Certified xerox.
(Jayanta Kumar Biswas, J) sb