Tripura High Court
Ranjit Roy vs Smti. Hena Roy on 11 August, 2023
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 16
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl.Petn.No. 02 of 2023
1. Ranjit Roy, S/o- Late Haridhan Roy, R/0- Village- Laxmipur,
Uttar Machamara, Ward No-1, P.S- Pecharthal, Sub Division-
Kumarghat, District- Unakoti, Age-80 years.
2. Biswajit Roy, S/o-Ranjit Roy, R/o- Village- Laxmipur, Uttar
Machamara, Ward No-1, P.S- Pecharthal, Sub Division-
Kumarghat, District- Unakoti, Age-39 years.
3. Abhijit Roy, S/o-Ranjit Roy, R/o- Village- Laxmipur, Uttar
Machamara, Ward No-1, P.S- Pecharthal, Sub Division-
Kumarghat, District- Unakoti, Age-37 years.
4. Rina Roy, W/o- Abhijit Roy, R/o- Village- Laxmipur, Uttar
Machamara, Ward No-1, P.S- Pecharthal, Sub Division-
Kumarghat, District- Unakoti, Age-30 years.
.....Petitioners
-V E R S U S-
1. Smti. Hena Roy, D/o- Late Haridhan Roy, R/o- Village-
Laxmipur, Uttar Machamara, P.S- Pecharthal, Sub Division-
Kumarghat, District- Unakoti, Age-50 years.
2. The State of Tripura (To be represented by the learned Public
Prosecutor, Hon'ble High Court of Tripura).
..... Respondents.
B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate.
Mr. S. Bhattacharjee, Advocate.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Mr. S. Lodh, Advocate.
Date of hearing : 08.08.2023
Date of delivery of
judgment and order : 11.08.2023
Whether fit for reporting : YES
JUDGMENT & ORDER
Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the petitioners also heard Mr. S. Ghosh, learned Addl. P.P. and Mr. S. Lodh, learned counsel appearing for the respondents.
Page 2 of 16[2] The present petition has been filed for passing necessary order by invoking power under Section-482 of Cr. P.C. and set aside the entire proceedings of NGR-17 (M) of 2022, NGR-37(M) of 2022 and NGR-38(M) of 2022 initiated by the learned Sub-Divisional Magistrate, Kumarghat, Unakoti District Tripura. Also quash the judgment dated 12.01.2023 passed by the learned Sessions Judge, Kailashahar, Unakoti Tripura in Crl. Revision No.03(2) of 2022. Further, allow the instant petition by invoking inherent power under Section-482 of Cr. P.C. by quashing and setting aside the order dated 02.06.2022 passed by the learned SDM, Kumarghat, Unakoti District Tripura in connection with case No. NGR-17 (M) of 2022. Also staying the further proceeding of NGR-17 (M) of 2022, NGR-37(M) of 2022 and NGR- 38(M) of 2022 pending before the learned SDM, Kumarghat, Unakoti District, Tripura and operation of the impugned judgment, dated 12.01.2023 passed in Crl. Revision No.3(2) of 2022 by the learned Sessions Judge, Kailashahar, Unakoti District Tripura till disposal of the present petition or till disposal of T.S. (Partition) 04 of 2022 pending before the learned Civil Court, Junior Division, Kailashahar, Unakoti Tripura.
[3] By means of filing the present petition the petitioner sought for invoking inherent power under Section-482 of Cr. P.C. of this Court by quashing and cancelling the further proceedings of NGR-17 (M) of 2022, NGR-37(M) of 2022 and NGR-38(M) of 2022 pending before the learned Sub-Divisional Magistrate, Kumarghat, Unakoti District, Tripura and operation of the impugned judgment, dated 12.01.2023 passed in Crl. Revision No.3(2) of 2022 by the learned Sessions Judge, Kailashahar, Unakoti District.
[4] Be it mentioned here, that TS(Partition)-04 of 2022 was filed by the petitioner No.1 against the respondent No.1 and other co-sharers, for amicable partition of the ancestral property described in Schedule-A of the plaint. Schedule-A is the Dokan Vitti, measuring 0.09 acres, recorded under present plot No.562 (old No.314), Khatian No.33, Touji No.24, situated within Mouja-Northy Machmara, Tehsil-Machmara, Revenue Circle- Pecharthal. When the said civil suit is pending for disposal , the respondent No.1 filed one after another complaints before the learned SDM Kailashahar, Page 3 of 16 Unakoti District and on the basis of these complaints, the learned Magistrate, initiated criminal prosecutions against the petitioners either under Section- 107 of Cr. P.C. or under Section-145 of Cr. P.C. [5] It is submitted that the Courts below absolutely failed to consider, that when a civil litigation is pending for same property, in which question of possession is also involved, then a parallel criminal proceeding under Section-145 or Under Section-107 of Cr. P.C. is not maintainable since either of the parties can have ample opportunity to approach civil Court for granting adequate relief, including injunction, appointment of receiver etc, so long the T.S. (Partition) 04 of 2022 is pending before the learned Civil Court. Only on this ground, this Court by invoking Section-482 of Cr. P.C. set aside and quashed the entire proceedings initiated either under Section-107 or under Section-145 of Cr. P.C. against the petitioners by the learned Magistrate, Kumarghat, Unakoti Trtipura, as the continuance of the said proceedings is also amounts to abuse and misuse of the process of law. The respondent No.1 also cause civil dispute into criminal flavor and lodged the malicious complaints against the petitioners.
[6] The facts leading to filing of this Revision petition are that the opposite parties submitted a prayer before the learned Sub- Divisional Magistrate, Kumarghat, Unakoti District stating that a serious breach of peace was in existence between the parties concerning a land. On receipt of the said prayer learned SDM registered the same as NGR17(M)/2022 under section 107 Cr.P.C. showing Smt. Hena Roy, daughter of late Haridhan Roy of Machmara, P.S. - Pecharthal as first party and the petitioners as second party and thereafter notice was issued upon both the parties to show-cause as to why they should not be ordered to execute bond. On receipt of the notice the petitioners being second party appeared and prayed for time to file written objection. Learned SDM allowed adjournment and fixed 08-07-2022 as next date. But on 02-06-2022 first party submitted a prayer stating that to prevent breach of peace there is necessity of application of section 145/146 Cr.PC on attaching the land in connection with land schedule- khatian Page 4 of 16 No. 33, T.K.-Machmara, Hal dag No. 562, property class -Dukan viti, total land measuring-0.09 acres and also to appoint O.C., Pecharthal PS as receiver.
[7] It is further stated in the petition that in connection with the aforesaid land schedule, the present petitioner filed a suit on 24-02- 2022, bearing No. TS(P) 04/2022 which is pending before the Civil Judge(Jr. Division), Kailashahar, Unakoti District against the OP No.1 along with other co-sharers. Thereafter, no adverse order was passed by the Executive Magistrate, Kumarghat but unfortunately, on 21-06-2022 the OC, Pecharthal PS was communicated the order of the learned SDM, which is reproduced as follows:-
"In reference to the subject cited above, the court of Executive Magistrate, Kumarghat has directed that for maintain peach in the locality section 146 should be imposed upon the disputed Dukan viti. So, you are hereby directed to impose section 146 Cr.P.C., on Dukan viti of below schedule and & restrain both party to enter the Dukan viti till final judgment of this court & Civil court, the OC, Pecharthal PS is hereby appoint as „Receiver‟ until final judgment of Executive Court & Civil Court.
Comply the order within 10(ten) days after receiving the order by the OC, Pecharthal Police Station & submit the report before this undersigned as early as possible."
[8] The learned Court below after hearing the parties and having gone through the material evidence on record, has observed as under:
"13. In view of the discussions made above, I have come to the conclusion that there is no illegality in the order dated 02-06-2022 passed by the learned Sub-Divisional Magistrate, Kumarghat, Unakoti District under section 146(1) Cr.P.C.
Thus, I do not find any merit in the Revision-Petition and the petition is accordingly rejected."
[9] Mr. P. Roy Barman, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel has submitted that the TS (Partition)- 04/2022, was for amicable partition of the joint property described in Schedule-A of the Plaint. Schedule-A is the 'Dokan Vitti', measuring Page 5 of 16 0.09 acres, recorded under Present Plot No. 562 (Old No-314), Khatian No-33, Touji No-24, situated within Mouja- North Machmara, Tehsil- Machmara, Revenue Circle- Pecharthal. Late Haridhan Roy, S/o- Late Roy Chand Roy, was the original owner of the suit land of TS (Partition)-04/2022. After his death the parties to the suit jointly inherited the suit land (Schedule-A).
[10] On 19.05.2022, the Executive Magistrate, Kumarghat, Unakoti District, issued notice to the Petitioners in C/w Case No- NGR- 17(M) of 2022, U/s-107 of Cr.P.C. From the said notice, it appears, that, Hena Roy, the Respondent No-1 herein, is the 1st Party & the Petitioners herein are the 2nd Parties. By that notice, both the parties were directed to appear before the learned Executive Magistrate, Kumarghat on 02.06.2022, at 10.30 am and also the 2nd Party Member(s) were asked to show cause as to why they should not be ordered to execute bond of Rs.-5000/- (Rupees Five Thousand) each with surety as deem fit by the learned Court for keeping peace and tranquility in the locality.
[11] It is also necessary to state that, in respect to the same suit land of TS (Partition) 04/2022, between the same parties, another Notice, was issued by the Executive Magistrate, Kumarghat, Unakoti District, U/s-107 of Cr.P.C. vide case No- NGR-37(M) of 2022 to the Petitioners making them 2 Parties and Hena Roy, i.e., the Respondent No-1 is the 1st Party. On the basis of baseless complaint of the Respondent No-1 herein, the Executive Magistrate, issued one after another notices upon the Petitioners. Similarly in respect to aforesaid suit land, another complaint was lodged by alleged one Co-sharer namely, Smt. Babli Rani Nath (Roy) W/o-Sri Himangshu Roy, before the Executive Magistrate, Kumarghat,Unakoti District. On the receipt of the same, it has been registered as NGR-38(M) of 2022, U/s-107 of Cr.P.C. The Executive Magistrate, Kumarghat, Unakoti District, on 19.05.2022, issued notice, U/s-107 of Cr.P.C. to the Petitioner No-3. By Page 6 of 16 the said notice, both the parties were directed to appear before him on 02.06.2022. Accordingly, both the parties appeared before him on the scheduled date & time. The Petitioner No-3 submitted written statement wherein it has been stated, that, between the parties to the aforesaid proceeding U/s-107 of Cr.PC a Civil Suit vide TS (Partition)-04/2022 is pending before the learned Civil Judge, Junior Division, Kailashahar, Unakoti Tripura.
[12] The Petitioners appeared in all the aforesaid cases before the competent authorities & contested the said proceedings by filing respective written statement of defence. The Petitioners empathetically submits that, in respect to core issue of dispute, regarding the occupation of suit land by the parties to the suit, T.S (Partition)- 04/2022, is pending before the learned Civil Judge, Junior Division, Kailashshar, Unakoti Tripura. The Petitioners also submits that, the criminal prosecution is also not maintainable in view of the fact, that, very same issue is pending for disposal before the learned Civil Court.
[13] While the proceeding, U/s-107 of Cr.PC, vide Case No- NGR-17(M) of 2022, has been in progress and the Petitioners are contenting the proceedings, all on a sudden, the learned Executive Magistrate, Kumarghat, Unakoti Tripura, passed the impugned order, dated, 02.06.2022, directing the Officer in Charge, Pecharthal P.S to impose Section-146 of Cr.P.C and restrain both the parties from entering into the Dokan Vitti, till final Judgment of the Case. In the impugned order, the learned Executive Magistrate, observed, that, many cases are pending before the learned Court, in respect to the shop and the learned Court after mentioning the case numbers, opined that, for maintaining peace in the locality Section-146 should be imposed upon the 'disputed dokan vitti'. In the same order, the learned Executive Magistrate, Kumarghat, appointed O/C of the Pecharthal P.S as 'receiver' of the 'disputed dokan vitti', attracting Plot No-562, Khatian No-33 of Machmarra T.K. Page 7 of 16 [14] In pursuance to the aforesaid impugned order, dated, 02.06.2022, the Executive Magistrate, Kumarghat, Unakoti Tripura, vide letter, dated, 03.06.2022, informed the O.C, Pecharthal P.S, that, the Executive Magistrate, Kumarghat, directed, for imposing Section- 146 of Cr.P.C upon the 'disputed dokan vitti' to maintain peace. Informing so, the O.C, Pecharthal P.S, was directed to impose Section- 146 of Cr.P.C over the dokan vitti and restrain both parties from entering into the dokan vitti, till final Judgment of the Executive Court & Civil Court. By the said letter, O.C, Pecharthal P.S, informed, that, he has been also appointed as receiver. The Petitioners have preferred Criminal Revision Petition, U/s-397 of Cr.P.C against the final Order, dated, 02.06.2022, passed by the learned Sub Divisional Magistrate, Kumarghat, Unakoti District, in c/w Case No-NGR- 17(M)/2022, before the learned Sessions Judge, Kailashahar, Unakoti Tripura, which has been registered and numbered as Crl. Revision No-3(2) of 2022.
[15] The impugned Judgment, dated, 12.01.2023, passed by the Ld Sessions Court, is suffers from illegality, impropriety & incorrectness. The learned Sessions Judge caused manifest error in deciding the grounds agitated by the Petitioners in the criminal revision petition. The learned Sessions Court below absolutely failed to consider, that, the SDM, Kumarghat, in violation of the mandate of Section-145 of the Cr.PC, passed the impugned Order, dated, 02.06.2022. For the convenience of the Court, Section-145 of Cr. P.C. may be reproduced hereunder:
"Section-145(1) of Cr.P.C, provides, that, whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information, that, a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.Page 8 of 16
(2) For the purposes of this section, the expression land or water"
includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take much further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subject of Provided that appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).
(5) Nothing in this section' shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub- section shall be served and published in the manner laid down in sub-section (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
Page 9 of 16(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107."
[16] Section-145(3) makes it obligatory upon the Executive Magistrate to serve copy of the Order upon each person, concerned in the dispute. Section-144(4) further provides, that, the Executive Magistrate, shall peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them and take such further evidence, if any as he thinks necessary and if possible beside whether any and which of the parties was at the date of the order, made by him under sub section-1, in possession of the subject of the dispute. Section-145(6) further provides, that, if the Magistrate decides, that, one of the parties was or should under the proviso to sub section 4, be treated as being in such possession of the said subject, he shall issue an declaring such party to be entitled to possession thereof, until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction, and when he proceeds under the proviso to sub section-4 may restore to possession the party, forcibly and wrongfully dispossessed.
[17] Sectiopn-146 of Cr.P.C, empowers the Executive Magistrate, with a power to attach the subject of dispute and to appoint receiver. Section-146 of Cr.PC provides, that, if the Magistrate, at any time, after making the order U/s-145(1) consider the case to be one of emergency or if he decides, that, none of the party was then in such possession as is referred to in Section-145 Cr.PC or if he is unable to Page 10 of 16 satisfy himself as to which of them was then in such possession of the subject of dispute he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Section-146(2) empowers the Executive Magistrate to appoint receiver, in respect to the subject of dispute.
[18] From the bare reading of the impugned order, dated, 02.06.2022, it is very much palpable, that, a proceeding U/s-107 Cr.PC has been converted into a proceeding U/s-145 Cr.PC and thereafter without complying with the mandate of Section-145 Cr.P.C, without issuing notice, without giving opportunity to the Petitioners to lead evidence, without determining who is in actual possession, without passing any order, U/s-145(6a) passed the impugned order. Impugned Order is the result of about absolute non application of mind by the concerned Magistrate. The learned Sessions Court failed to consider, that, impugned order, dated, 02.06.2022, passed by the learned Executive Magistrate, Kumarghat, which was challenged by invoking revisional jurisdiction of the learned Sessions Court is dehors. As such, it is absolutely illegal & manifestly perverse. The learned Court failed to exercise the revisional jurisdiction vested on it U/s-397 Cr.P.C, causing miscarriage of justice as well as abuse of the process of the law.
[19] It has been further submitted that the learned Sessions Court also failed to consider, that, when a civil litigation is pending for same property, in which question of possession is also involved, then a parallel criminal proceeding under Section 145 or U/s-107 of Cr.P.C is not justified since either of the parties can have ample opportunity to approach civil Court for granting adequate relief, including injunction, so long the TS (Partition)- 04/2022 is pending before the learned Civil Court. Only on this ground, the Hon'ble High Court by invoking Section-482 of Cr.P.C, set aside & quashed the entire proceedings initiated either U/s-107 or U/s-145 of Cr.PC against the Petitioners Page 11 of 16 initiated by the learned Magistrate, Kumarghat, Unakoti Tripura, as the continuance of the said proceedings is also amounts to abuse & misuse of the process of law.
[20] The learned Court below ought to have easily consider the fact of growing tendency to convert purely civil disputes into criminal cases, on account of a prevalent impression, that, civil law remedies are time consuming and do not adequately protect the interests of litigants. the learned Court below, ought to have easily considered the fact, that, the Respondent No-1 with a mala fide intention by applying pressure through criminal cases entangled the Petitioners in a criminal prosecution and attempted to settle civil disputes pending before the learned Civil Court, vide TS (Parton)-04/2022, fed one after another malicious & baseless complaints against the Petitioners which do not involve any criminal offence.
[21] The Ld Court ought to have discouraged the initiation of proceedings U/s-107 or 145 of Cr.PC by taking note of the fact that, the Respondent No-1 with a mala fide Intention converted civil dispute in a criminal colour/favour only to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be set- aside & quashed by this Court by invoking Section 482 of Cr.P.C.
[22] The Petitioners have good prima facie case & the balance of convenience & inconvenience strongly lies in favour of the Petitioners. For this reason, the Hon'ble High Court may be kind enough to pass an interim order, staying the further proceedings of NGR-17 (M) of 2022, NGR-37(M) of 2022 and NGR-38(M) of 2022, pending before the L'd Sub Divisional Magistrate, Kumarghat, Unakoti District, Tripura and operation of the impugned Judgment, dated, 12.01.2023, passed by the learned Sessions Judge, Kailashahar, Unakoti District till disposal of instant petition or till disposal of TS(Partition)-
Page 12 of 1604/2022, pending before the L'id Civil Court, Junior Division, Kailashahar, Unakoti Tripura.
[23] In support of his, he has placed reliance in a judgment of the Apex Court in Jhummamal alias Devandas v. State of Madhya Pradesh and Another, reported in (1988) 4 SCC 452, wherein, the Court has held thus:
"8. We fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer's case. The ratio of the said decision is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under sec. 145 Cr.P.C. made by the Magistrate of competent jurisdiction be set at naught merely because the unsuccessful party has approached the civil court. An order made under sec. 145 Cr.P.C. deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached."
[24] In view of the above analysis, this Court is of the opinion that Section 145 is intended to provide a special remedy for the prevention of breach of peace arising out of a dispute relating to immovable property. Its primary object is to maintain the public peace and not to decide disputes between the contending parties or adjudicate upon the rights of the parties to possession. Now, that the civil court is seized of the matters it is desirable that such parallel proceedings in respect of the same subject matter and dispute should not be allowed to continue in the criminal court as it amounts to an abuse of the process of the court which is one of the grounds for invoking section 482 Cr. P.C. For the foregoing reasons, this petition deserves to be allowed.
[25] There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents was not in a position to challenge the proposition that parallel proceeding should not be Page 13 of 16 permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during dependency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.
[26] This Court is of the view that the respondents have acted beyond their jurisdiction which cannot be accepted. The concerned officers should know their limitations and professional ethics. The common citizens shall not be suffered like that and that too for a responsible official. At one point of time this Court presumes that the officers concerned have misused their power. This Court, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed and accordingly allow the petition and quash the impugned order(s) of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated.
[27] It is not a case of breach of tranquility or there cannot be any law and order problem and earlier also there are no antecedents in the area concerned. In a catena of Apex Court judgments, it has been held that in when civil dispute is there it is not for the police to interfere into their matter. Even the police record does not indicate that it‟s a grave crime involving of law and order problem or disturbance of peace and tranquility. Thus, it looks like exercise of excessive power and the reasons given are only a colorable exercise for exercising their powers excessively and thus it is nothing but abuse of his seat the impugned proceeding set aside the criminal petition is allowed.
[28] On the last occasion i.e. on 04.08.2023, when the case was called, Mr. Subrata Kr. Dash, present SDM of Kumarghat was present Page 14 of 16 and informed that he is not the concerned officer at the relevant point of time and not in a position to give justification to the issue involved and liberty was given to him and again the case was posted on 08.08.2023 summoning Mr. Subrata Bhattacharjee, presently posted as SDM, Mohanpur, West Tripura and Mr. Abid Hossain, DCM, Kumarghat.
[29] Today Mr. Subrata Bhattacharjee, presently posted as SDM, Mohanpur, West Tripura and Mr. Abid Hossain, DCM, Kumarghat are present and after hearing both side, when the Court questioning them with regard to invoking powers under Section-145 Cr. P.C., since it‟s a power used under extraordinary circumstances in-order to protect law and order and peace and tranquility but except doing this, they received a complaint regarding civil dispute which is pending before the learned Court below and the present power has been invoked on the strength of the police report. Neither the complaint nor the content of the police report constitute any cognizable offence nor there are any antecedents of creating law and order problem in the earlier occasion and the content appears to be in a routine manner. If the submissions made by the Mr. Subrata Bhattacharjee and Abid Hossain are considered, it is difficult to except the same, since there are several suits pertaining to family settlement and partition suits amongst the siblings and amongst other family members which are pending in the Court of law. Further, several complaints are also in this regard approach by either of the parties before the police station.
[30] If that is the case, the entire functioning would be paralyzed and the dispute would be referred to Section-145 Cr. P.C. which is factually incorrect in the present case. No material and reasoning has been placed before this Court by both Mr. Subrata Bhattacharjee and Mr. Abid Hossain for considering the case in their favour. Hence, this Court has no hesitation to find that Mr. Subrata Bhattacharjee and Mr. Abid Hossain have exercised their powers Page 15 of 16 indiscriminately and excessively and this is nothing else but abuse of their powers and the position they are holding.
[31] Hence, this Court finds Mr. Subrata Bhattacharjee and Mr. Abid Hossain guilty. Mr. Subrata Bhattacharjee and Mr. Abid Hossain have made the petitioners herein to move the Court of law and underwent mental trauma and agony and more so, the thin thread relationship between both the parties within the family during the pendency of the civil proceeding, the interference of Mr. Subrata Bhattacharjee and Mr. Abid Hossain has broken the thin thread relationship by invoking criminal proceedings and summoning the petitioners to their offices and issuing summons obtaining their bail bond and sureties as if they are committed any crime.
[32] In view of the abuse of powers by the respondents, this Court considering that for better administration, Mr. Subrata Bhattacharjee, the then SDM of Kumarghat, Unakoti District, Tripura presently posted as SDM Mohanpur, West Tripura and Mr. Abid Hossain, DCM, Kumarghat should be imposed with penalty and accordingly a fine of Rs.50,000/- is imposed and the same to be collected from each of their salary and be deposited to the account No.20120200000011 [UCO Bank, High Court Branch] of High Court Legal Services Authority on or before 5th September, 2023 and on such deposit, the petitioners are at liberty to withdraw the same unconditionally. Accordingly, the petition stands allowed and disposed of, as prayed for. Consequently, the impugned order stands set aside. Send down the LCRs forthwith. As a sequel, miscellaneous application(s) pending, if any, shall stand closed.
[33] Copy of this order be supplied to the Chief Secretary, Government of Tripura, Principal Secretary, Finance, Member Secretary, High Court Legal Services Committee and DDO/Treasury Page 16 of 16 Office, State of Tripura. Further, copies of this order be also furnished to Mr. Subrata Bhattacharjee and Mr. Abid Hossain.
JUDGE
A.Ghosh
ANJAN Digitally signed by
ANJAN GHOSH
GHOSH Date: 2023.08.12
12:41:42 +05'30'