Calcutta High Court (Appellete Side)
Nitish Das & Ors vs The State Of West Bengal & Anr on 29 June, 2009
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. No. 3522 of 2007 Nitish Das & Ors.
versus The State of West Bengal & Anr.
For Petitioners : Mr. Navanil De For State : Mr. Tirthankar Ghosh Heard On : May 4th, 2009. Judgment On : 29-06-2009.
An ex parte order whereby a proceeding under Section 147 of the Code of Criminal Procedure is made absolute by the concerned Executive Magistrate and subsequently affirmed by the Sessions Court is the subject matter of challenge in the instant criminal revision.
2. Mr. Navanil De, the learned advocate appearing on behalf of the petitioner and Mr. Tirthankar Ghosh, the learned advocate appearing for the State are present in Court. However, in spite of repeated calls none appears on behalf of the opposite party no. 2. The affidavit of service showing that service has been duly effected upon the opposite party no. 2 is already on record.
Heard both the learned Counsels appearing on behalf of the petitioner as well as for the State. Perused the impugned order and other materials on record.
3. This is a second revision and in view of statutory bar contained in Section 397 (3) of the Code of Criminal Procedure, entertainment of the same by the High Court for the second time at the instance of the self-same party at whose instance a criminal revision was earlier moved and disposed of finally, is not legally permissible, unless it is found the order impugned is manifestly attended with gross illegality and brings out a situation which is completely an abuse of process of Court and ends of justice demands interference with the same.
4. The background facts in a nutshell are as follows;
(a) On December 4, 2003 the opposite party no. 2 herein moved an application under Section 147 of the Code of Criminal Procedure before the Learned Executive Magistrate, Jangipur against the present petitioner. Whereupon, the Learned Magistrate called for a report from the Block Land & Land Reforms Officer, Suti - II and directed the parties to maintain status quo in the meantime.
(b) On December 9, 2004 the Learned Magistrate received the report from Block Land & Land Reforms Officer and recording his satisfaction about the possibilities of breach of peace over the issue drew up a proceeding and directed the petitioners to appear in Court and to show cause as to why such proceeding shall not be made absolute.
(c) In response to the aforesaid order the petitioner appeared in Court and prayed for time for filing show cause and such prayer was allowed. Thereafter the time for filing of show cause was extended on the prayer of the parties then due to a cease work.
(d) On February 2, 2006 although the first party, i.e. the opposite party no. 2 herein was present in Court but the petitioners who happened to be the second party were absent. When the Learned Magistrate made his earlier order passed on December 9, 2004 absolute. The order so passed is quoted below :-
"2.2.2006. The petitioners files haziras through their learned advocates.
O.P. does not appear. Order dated 9.12.2004 is hereby made absolute. O.P. men are directed not to disturb the peaceful possession of the petitioners in respect of the pathway as stated in the schedule of the petition. Officer-in-Charge, Suti Police Station is to comply the order.
Hence ordered, that the case is disposed of accordingly. Inform all concerned."
5. The provisions of Section 147 of the Code of Criminal Procedure are read as follows;
147. (1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, 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.
Explanation : The expression "land or water" has the meaning given to it in sub-section (2) of Section 145.
(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry.
(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right:
Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.
(4) When in any proceedings commenced under sub-section (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1);
and when in any proceedings commenced under sub-section (1) the Magistrate finds that the dispute should be dealt with under section 145, he may; after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of section 145.
6. According to the aforesaid provisions of Section 147 of the Code whenever an Executive Magistrate is satisfied from a police report or upon other information that a dispute likely to cause a breach of peace exists regarding any alleged right of user of any land or water, within his local jurisdiction, whether such right is right of easement or otherwise, he shall make an order in writing, stating the ground of his satisfaction and requiring the parties concerned to attend the Court and to submit written statement of their respective claims. Then upon perusal of the statement submitted by the parties and hearing them and receiving all such evidence as may be produced and considering the effect of such evidence the Learned Magistrate has to decide first of all whether such right exists or not and only if it appears to him that such right exists the Learned Magistrate may make an order prohibiting any interference with the exercising of such right including in a proper case an order for removal of any obstruction in the exercise of any such rights.
7. A plain reading of the aforesaid provisions makes it abundantly clear to assume jurisdiction under Section 147 of the Code, the Executive Magistrate has to satisfy first either from police report or from any other information whether a dispute likely to cause a breach of peace regarding any alleged right of user of any land or water does exist or not and if he satisfies that a dispute is likely to cause a breach of peace do exist then in that case it is open to him to proceed further but before proceeding further it is mandatory he may must record the grounds of his satisfaction. It is also the mandate of law that no prohibitory order can be made without first deciding the question about the existence of such right of user of a party over the disputed property.
8. Now having gone through the orders from time to time passed in connection with the aforesaid proceedings under Section 147 of the Code of Criminal Procedure, I find that the Learned Magistrate upon receipt of the report from the Block Land & Land Reforms Officer, Suti - II, although recorded his satisfaction about the possibilities of breach of peace over the issue but no ground on the basis of which such satisfaction was drawn was spelt out in the said order. Furthermore, in response to the notice issued by the Learned Magistrate in connection with the said proceeding although the petitioner appeared in Court but due to their absence on a single occasion the Learned Magistrate passed the prohibitory order against them. However, before passing such prohibitory order the Learned Magistrate never reached to any finding as to the existence of right of user of the first party, i.e., the opposite party no. 2 herein in respect of the disputed pathway in question. There is also nothing on record that any evidence was recorded before making of such prohibitory order. I further found that the report of the Block Land & Land Reforms Officer, Suti - II, which is the foundation of the impugned prohibitory order relates to an enquiry held in February, 2004, but when the order passed in February, 2006, nearly two years after, there was nothing to show that the apprehension of breach of peace was still existing.
For the reasons stated above, I am of the opinion, the order impugned cannot be sustained and, accordingly, the same stands set aside.
The instant criminal revision stands allowed.
However, this order will not preclude the learned Court below to proceed afresh in accordance with law.
In view of the disposal of the main criminal revision C.R.R. No. 3522 of 2007, the application for extension of interim order being CRAN No. 931 of 2009 stands disposed of.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
(Ashim Kumar Roy,J.)