Gauhati High Court
Page No.# 1/14 vs The State Of Assam And 2 Ors on 27 March, 2025
Page No.# 1/14
GAHC010251452023
2025:GAU-AS:3605
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1200/2023
ANWAR UDDIN BARBHUIYA AND ANR.
S/O- LATE TAZAMUL ALI BARBHUIYA, R/O- VILL.- TARAPUR PART-III, P.O.
AND P.S. SILCHAR, DIST. CACHAR, ASSAM
2: ANWARA BEGUM BARBHUIYA
W/O- ANWAR UDDIN BARBHUIYA
R/O- VILL.- TARAPUR PART-III
P.O. AND P.S. SILCHAR
DIST. CACHAR
ASSA
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:BIRA SINGHA
S/O- LATE KULO SINGHA
R/O- TARAPUR PART-III
P.O. AND P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN- 788003
3:THE LAMARGRAM TILARGRAM SWASHAGHAT COMMITTEE
REPRESENTED BY ITS SECRETARY
SRI SAMIRAN CHANDRA DHAR
S/O- LATE SAILENDRA CHANDRA DHAR
R/O- TARAPUR PART-III
P.O. AND P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN- 788003
Page No.# 2/14
Advocate for the Petitioner : MS. R CHOUDHURY, MR. A H M R CHOUDHURY,MS. B.
HAZARIKA
Advocate for the Respondent : PP, ASSAM, MS. A LALA (R-2,3),MR. B CHAKRAVARTY (R-2,3)
:::BEFORE:::
HON'BLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 11.12.2024 Date of Order : 27.03.2025 JUDGMENT & ORDER (CAV) Heard Ms. R. Choudhury, learned counsel for the petitioners. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. B. Chakravarty, learned counsel for the respondent Nos. 2 & 3.
2. This is an application under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing the proceeding in Case No. 42 M/2023, pending before the Court of learned Additional District Magistrate, Cachar, Silchar and the subsequent order dated 30.10.2023, passed therein, as well as the order dated 06.10.2023, passed by the learned Additional Sessions Judge (FTC), Cachar, Silchar in Criminal Revision Petition No. 17/2023.
3. The case of the petitioners, in brief, is that the private respondent Nos. 2 & 3, herein, and others instituted a title suit, being T.S. No. 298/2022 before the Court of learned Munsiff No. 1, against the present petitioners and others for Page No.# 3/14 cancellation of a registered Sale Deed No. 2404/2012, which was executed in favour of the petitioners transferring some land, alleging that the vendors of the petitioners without having any right, title and possession over the land, transferred the same in favour of the petitioners. The petitioners, on receipt of the notice, accordingly, entered appearances and filed their Written Statement as defendants denying the claim of the plaintiffs and thereby prayed for dismissal of the same.
4. The petitioners contends that during the pendency of the said Title Suit, the private respondents quite surprisingly on the same facts and circumstances, filed an application before the Court of learned District Magistrate, Cachar by making out a concocted story alleging that on receipt of the summon in connection with aforesaid T.S. No. 298/2022, the petitioners along with others hurriedly started construction work over the Schedule-II private path and constructed a thatched house and erected spilt bamboo pole around the Schedule-III land and accordingly the private respondents prayed to draw up a proceeding under Section 145 Cr.P.C. in respect of Schedule-III land and under Section 133 Cr.P.C. in respect of Schedule-II path. Accordingly, the learned Additional District Magistrate, Cachar, vide Order dated 19.01.2023, drew up a proceeding under Section 133 Cr.P.C. and thereby passed a conditional order on the basis of a police report directing the concerned police station to remove the obstruction from the alleged path within 7 (seven) days from the date of receipt of the order. Thereafter, being aggrieved by the aforesaid order dated 19.01.2023, the petitioner No. 1 filed a revision petition under Section 397 Cr.P.C. being Criminal Revision No. 17/2023 before the Court of learned Session Judge, Cachar and the learned Additional Session Judge (FTC), Cachar, vide Page No.# 4/14 judgment and order dated 06.10.2023, disposed of the same by directing the revisionist, i.e. the present petitioner No. 1, to take part in the proceeding before the learned Additional District Magistrate. Thereafter, the learned Additional District Magistrate, Cachar, vide Order dated 30.10.2023, again directed the petitioners to remove the alleged obstruction without giving any opportunity to hear the petitioners. Hence, being aggrieved, the present petition has been preferred seeking quashment of the entire proceeding in Case No. 42M/2023, pending before the Court of learned Additional District Magistrate, Cachar, Silchar by setting aside the orders dated 19.01.2023 and 30.10.2023 passed therein as well as the judgment and order dated 06.10.2023, passed by the learned Additional Session Judge (FTC), Cachar in Criminal Revision Petition No. 17/2023.
5. Ms. Choudhury, learned counsel for the petitioners, submitted that a civil suit is already pending before the competent Civil Court between the parties and if the petitioners have illegally encroached the land of the respondent and has done any illegal construction activities therein, as alleged in the petition, the respondents could have obtained proper orders from the Civil Court itself. But, instead of approaching the concerned Civil Court, they instituted the impugned proceeding before the learned Additional District Magistrate, who accordingly drew up a proceeding under Section 133 Cr.P.C. Thus, she submitted that the learned Additional District Magistrate, by taking cognizance into the matter, has not only committed gross illegality but also exceeded his jurisdiction. More so, in the said Criminal Revision Petition No. 17/2023, filed by the petitioner challenging the order dated 19.01.2023, though the learned Additional Session Judge (FTC), Cachar had discussed the issues, but surprisingly did not make any Page No.# 5/14 whisper on the issue of maintainability despite the fact of pendency of the civil suit between the parties before the Court of learned Munsiff No. 1 and thereby passed the order directing the petitioners to take part in the proceeding, which is liable to be set aside and quashed. Rather, the impugned proceeding before the learned Additional District Magistrate, which is registered as Case No. 42M/2023, is itself not maintainable and same is liable to be set aside and quashed by invoking the power under Section 482 Cr.P.C. She further submitted that the learned Revisional Court also wrongly arrived at a decision that the petitioners were given opportunity for submission of their objection before the learned Additional District Magistrate in Case No. 42 M/2023 and in spite of submitting any objection, they directly approached before the Revisional Court. But it was not scrutinized that the petitioners never received any notice in connection with Case No. 42M/2023 nor any opportunity was granted to raise their objection before passing the conditional order ex parte against the present petitioners and for which, the petitioner had to approach the learned Revisional Court under Section 397 Cr.P.C.
6. Ms. Choudhury further submitted that the predecessor in interest of the petitioners had purchased the land in question by executing a registered Sale Deed and they are possessing over the disputed land since 29.09.2012, i.e. from the date of registration of the Sale Deed. More so, it is considered by the learned Munsiff No. 1 that it is a private path, but without considering the aspect of pendency of the civil suit, the respondents herein filed a petition before the learned Additional District Magistrate wherein the proceeding has been drawn up under Section 133 Cr.P.C. which is not at all maintainable. Rather, the respondent had the opportunity to pray for an injunction before the Page No.# 6/14 competent Civil Court if there was any illegal encroached over the disputed land. The learned Revisional Court also held that the path or the disputed land is a private path, but in spite of the said fact, the proceeding under Section 133 Cr.P.C. was drawn up which is not maintainable. Moreover, the said ex pate proceeding for removal of obstructions etc. was drawn up only on the basis of Police Report and without even giving an opportunity to the present petitioners to raise any objection or to file their documents in that regard. Further she submitted that from the pleading of the Civil Suit, it is seen that the respondents, along with some other defendants, had filed the said suit claiming right, title and interest over the disputed land wherein the prayer for injunction along with the prayer for cancellation of Sale Deed was also made before the learned Civil Court below. Accordingly, Ms. Choudhury submitted that the petition pending before the learned Additional District Magistrate, which is numbered as Case No. 42M/2023, as well as the order passed by the learned Revisional Court, are liable to be quashed and set aside.
7. Ms. Choudhury further relied on a decision of Hon'ble Apex court reported vide 2021 0 Supreme(SC) 628 (Mitesh Kumar J. Sha Vs. The State of Karnataka & Ors.), wherein, relying on the judgment passed in State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors [(1992) SCC(Cri) 426], it has been observed that by giving criminal color to a civil dispute only to take advantage of a relatively quick relief in a criminal case in contrast to civil dispute, the same are nothing but an abuse of process of law which must be discouraged in its entirety. She basically emphasized on paragraph Nos. 37, 38, 40, 41 & 45 of the judgment, wherein in paragraph No. 41 of the said judgment, it has been discussed as to whether a dispute purely civil in nature can be given a criminal colour and as to whether in that aspect, the criminal Page No.# 7/14 case is liable to be quashed. Accordingly, Paragraph No. 41 of the said judgment reads as under:
"41. Having considered the relevant arguments of the parties and decisions of this court we are of the considered view that existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. As has been rightly emphasised upon by this court, by way of an observation rendered in the case of M/s Indian Oil Corporation Vs. M/s. NEPC India Ltd & Ors. (2006) 6 SCC 736, as under :-
"14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law."
8. She further relied on a decision of co-ordinate Bench of this Court, which is reported vide 2007 Legal Eagle (GAU) 479 (Sankar Saha Vs. State of Tripura & Ors.), and emphasized on paragraph Nos. 24 & 29 of the said judgment, which read as under:
"24. If a dispute is of civil nature, such dispute cannot be entertained by a Magistrate under Section 133 Cr.P.C. The provision of the Section can be used only for settlement of dispute in relation to public right in the general interest of public at large. Unless a nuisance is created at a public place, Section 133 does not apply and no order can be passed under this Section. As has been held by this Court in Bhaba Kanta Vs. Ramachandra reported in 1987 Cr.L.J. (Gau.) 1155, when the obstruction did not cause public nuisance or the alleged conduct did not affect public right, the Magistrate has no jurisdiction to continue the proceeding under Section 133 Cr.P.C. For the applicability of Section 133 Cr.P.C., the public must have a right of way which is being obstructed or on which nuisance is made or it must be a public place where the alleged obstruction is created. The ingredients of Section 133 of Cr.P.C. imply not only that the way, river or channel must be one of public use, but the obstruction must be to that of public use.
29. From the aforesaid discussions made on the basis of the materials on record. I have no hesitation to hold that the SDM proceeded with the matter with gross irregularity and illegality giving a complete good-bye to the mandatory requirement Page No.# 8/14 and procedure envisaged under Section 133 Cr.P.C. This being the position both on facts as well as on law, the entire proceeding in Case No. NGR 478 (EX)/06 is liable to be set aside and quashed, which is accordingly do."
9. Ms. Choudhury, accordingly, submitted that it is a fit case wherein the proceeding pending before the learned Additional District Magistrate, which is numbered as Case No. 42M/2023, is liable to be set aside and quashed by setting aside the order dated 19.01.2023 & 30.10.2023, passed therein as well as the judgment and order dated 06.10.2023, passed by the learned Additional Sessions Judge (FTC), Cachar, Silchar in Criminal Revision Petition No. 17/2023.
10. Mr. Chakravarty, learned counsel for the respondent Nos. 2 & 3, submitted in this regard that the learned Additional District Magistrate rightly passed the conditional order for removal of obstruction considering the Police Report wherein it has been stated that the petitioners' side had tried to make construction over the disputed path/land by causing nuisance/obstructions in the path. Further it is submitted that considering all aspects of the case, the learned Additional Sessions Judge (FTC), Cachar also rightly passed the order dismissing the revision petition, being Crl. Rev. Pet. No. 17/2023, filed by the present petitioners, with a further direction to the petitioners to appear before the learned Additional District Magistrate and to contest the case accordingly. Further he submitted that it was purely an interlocutory/conditional order and thus, no revision lies against such interlocutory order. He also submitted that the present petition is also more or less a second revision petition in the garb of the criminal petition which is also not maintainable. He further submitted that it is a fact that there is a civil dispute pending between the parties, but due to the obstructions caused by the petitioners, the respondents are bound to file a Page No.# 9/14 petition before the learned Additional District Magistrate for quick removal of the obstructions/nuisance from the private path/disputed land. Accordingly, Mr. Chakravarty submitted that it is not at all a fit case to make any interference in the order passed by the learned Additional Sessions Judge (FTC), Cachar, nor it is a fit case to set aside and quash the entire proceeding pending before the Court of learned Additional District Magistrate, which is registered as Case No. 42M/2023. Accordingly, he submitted that the instant petition is liable to be dismissed.
11. In support of his submissions, Mr. Chakravarty further relied on a decision of the Co-ordinate Bench of this Court passed in case of Isshar Ali & ors. Vs. Md. Mahibuddin Ahmed [1985 (1) GLR 223] and emphasized on paragraph No. 7 of the judgment, wherein it has been held that pendency of the civil suit regarding the same property is no bar to take action under Section 145. Paragraph No. 7 of the said judgment reads as under:
"7. As the criminal court is not concerned with the, right of either of the parties regarding, possession of the disputed land, and the object of the proceeding u/s 145 being prevention of breach of peace, arising out of possession of land or water, it was stated in Chakrapani v. Dhruba Charan 1967 CriL.J. 397 (Orissa) that pendency of civil suit regarding the same property is no bar to take action u/s 145. It was, however, recognized that the position would be different if the civil court had put the property in custodia legis there by removing the cause for breach of peace."
12. In regards to the maintainability of the revision petition against the interlocutory order, Mr. Chakravarty also relied on a decision of the Co-ordinate Bench of this Court passed in the case of Sarala Begum Vs. Ratika Begum & 3 Ors. [2019 legal Eagle (GAU) 457] and basically emphasized on paragraph No. 11 of the said judgment, which reads as under:
Page No.# 10/14 "11. Now the facts to be noted that although the observation of the learned Revisional Court may be correct but provision of Section 146(1) CrPC, provides that such an order take the shape of interlocutory one, as the same cane be vacated by the trial Court and attachment order can be withdrawn when the Magistrate is satisfied. In that view of the matter, the order side/respondent to whom notice was issued, was in a position to assail such an order of attachment and the learned trial Court, after hearing the parties, was in a position to vacate such order. In view of provision, no revision will lie against such interlocutory order, where the parties have the scope to approach against such order so passed by the trial Court, u/s. 146(1) CrPC., for vacation, alteration, etc."
13. Mr. Baruah, learned Additional Public Prosecutor for the State respondent No. 1, also submitted that the learned Additional Sessions Judge (FTC), Cachar had rightly passed the order considering all pros and cons of the case directing the present petitioners to appear before the learned Additional District Magistrate and to contest the case by filing proper documents etc. He accordingly submitted that it is not a fit case for invoking power under Section 482 Cr.P.C. for setting aside and quashing of the order passed by the learned Revisional Court as well as the proceeding which is pending before the learned Additional District Magistrate.
14. After hearing the submissions made by the learned counsels for both and also on perusal of the materials available in the case record including the annexures filed along with the petition, it is seen that there is a civil dispute between the parties and in that regard, the private respondents, along with some others, as plaintiffs, have already filed a Civil Suit, which is pending before the Court of learned Munsiff No. 1, Cachar, Silchar and registered as Title Suit No. 298/2022. In the said Civil Suit, it is alleged that the petitioners are illegally possessing the land on the basis of a fake Sale Deed and accordingly, prayed for Page No.# 11/14 right, title and interest over the said disputed land along with a prayer for injunction and for cancellation of Sale Deed which was executed in favour of the predecessor in interest of the petitioners. But it is also seen that during the pendency of the said Title Suit, the private respondents filed another application before the learned Additional District Magistrate, Cachar, Silchar with the allegation that after receipt of summon in connection with said Title Suit No. 298/2022, the petitioners, along with others, hurriedly started construction over the Schedule-II land and accordingly, the private respondents prayed to draw up a proceeding under Section 133 Cr.P.C. as well as under Section 145 Cr.P.C. It is also seen from the order passed by the learned Additional District Magistrate that the said order was passed ex parte on the basis of a Police Report without even hearing the present petitioners. For the sake of argument, even if it is admitted that there was an illegal construction over the disputed property during the pendency of the Civil Suit, the respondents could have approached the competent Civil Court praying for injunction restraining the petitioners from construction over the disputed land. But, in spite of making any such prayer before the learned Munsiff No. 1, the respondents had approached the Criminal Court for quick relief of the case by giving a criminal colour to a civil suit. There may not be any bar for approaching the Criminal Court if any criminal offence is committed by the parties. But, here in the instant case, it is seen that it is purely a civil dispute wherein in stead of praying for an order for injunction before the competent Civil Court, the respondents had directly approached the learned Additional District Magistrate with a criminal petition praying for order of removal of obstruction and the learned Additional District Magistrate also, without giving any opportunity of hearing to other side, had passed the order on the basis of the Police Report.
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15. From the Order dated 06.10.2023, passed in Criminal Revision Petition No. 17/2023, it is seen that the learned Additional Sessions Judge (FTC), Cachar had observed the provision of Section 133 (a) Cr.P.C. which provides the power and authority to a District Magistrate to pass an order for removal of obstruction if it causes any nuisance. It is also observed that the private path is used by the other public and considering the Police Report, the learned Revisional Court had passed the order dismissing the revision petition with a direction to the present petitioners to appear before the learned Additional District Magistrate and to contest the case accordingly. But the learned Revisional Court did not make any observation in regards to pendency of any Civil Suit before the learned Munsiff No. 1, even though it is an admitted position that at the time of filing of the revision petition, both the parties had already appeared before the Civil Court in Title Suit No. 298/2022, which was filed by the private respondent Nos. 2 & 3, along with others, praying for their right, title and interest and for cancellation of the Sale Deed, on the strength of which, the petitioners had claimed their right, title and interest over the disputed land.
16. Coming to the issue raised by the respondents in regards to the maintainability of the revision petition before the Court of learned Additional Sessions Judge (FTC), Cachar, it is seen that the petitioners had approached the Revisional Court after the ex parte order of removal of the obstructions/conditional order passed by the learned Additional District Magistrate in Case No. 42M/2023, dated 30.10.2023. Admittedly, the order challenged before the learned Revisional Court was a conditional/ interlocutory order, but it is to be seen as to whether the said interlocutory order affects or Page No.# 13/14 adjudicate the rights of the parties. Here in the instant case, it is seen that the order of removal of obstructions from the disputed land also can be recorded as one kind of order which affects the rights of the parties and hence, in such a situation, the revision lies before the Revisional Court against such kind of order.
17. In the case of Indrapuri Primary Co-Operative Housing Society Ltd. & Anr. Vs. Sri Bhabani Gogoi, reported in 1991 1 GLR 28, a Co-ordinate Bench of this Court had expressed the view in paragraph No. 11 of the judgment as under:
"11. In view of the above discussions, there are interlocutory orders which an be called or regarded as judgments considering the meaning of 'judgment' stated above. In other words, every interlocutory order cannot be regarded as a judgment, but only that order would be or would be regarded as a judgment which decides the matter of moment affecting the valuable rights of the parties, or the interlocutory order which contains traits and trappings of finality either when the order decides the question for controversy in the main proceeding or ancillary proceeding or in a part of the proceedings. Therefore, there are two kinds of interlocutory orders, one which would be regarded as a judgment and other which would not be regarded as a judgment."
18. Here in the instant case, it is seen that the learned Revisional Court, without considering the pendency of the Civil Suit for the same disputed land between the parties, passed the Order directing the present petitioners to appear before the learned Additional District Magistrate and to contest the case accordingly by dismissing the revision petition.
19. Thus, from the entire discussions made above and also considering the facts and circumstances of this case, as discussed above, it is seen that the dispute between the parties is purely civil in nature wherein both the parties have claimed their right, title and interest over the disputed property and the Page No.# 14/14 private respondents had also prayed for cancellation of Sale Deed which was executed in favour of the predecessor in interest of the petitioners. But, without even approaching the learned Munsiff No. 1 seeking for injunction, the respondents had preferred a criminal petition before the learned Additional District Magistrate and on the basis of which, the learned Magistrate had also drawn up a proceeding under Sections 131 as well as 145 Cr.P.C.
20. In view of above and also considering the view expressed by the Apex Court as well as the Co-ordinate Bench of this Court in the case laws referred to herein above as well as for ends of justice, I am of the view that this is a fit case where the extra-ordinary power under Section 482 of the Code of Criminal Procedure can be invoked to quash the criminal proceeding pending against the present petitioners. Accordingly, the petition stands allowed. Consequently, the order dated 30.10.2023, passed by the learned Additional District Magistrate, Cachar, Silchar in Case No. 42M/2023 as well as the order dated 06.10.2023, passed by the learned Additional Sessions Judge (FTC), Cachar, Silchar in Criminal Revision Petition No. 17/2023, stands set aside and quashed. Both the parties are directed to approach the competent Civil Court for proper adjudication of the matter.
21. In terms of above, this criminal petition stands disposed of.
JUDGE Comparing Assistant