Calcutta High Court (Appellete Side)
Ramgopal Chowdhury vs Unknown on 22 March, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 22.03.2011 (17) mb C.R.R. 1522 of 2010 In Re.: An Application under Section 401 read with Section 482 of the Code of Criminal Procedure filed on 13th May, 2010.
In the Matter of : Ramgopal Chowdhury Md. Sabir Ahmed ................for the petitioner Mr. Sandip Chkraborty ........for the opposite party no. 2 The petitioner, Ram Gopal Chowdhury, has challenged the legality, validity and propriety of the order dated 06.04.2010 in a proceeding under Section 133 of the Code of Criminal Procedure whereby the learned Executive Magistrate, Jangipur was pleased to drop the proceeding on the ground that the dispute in substance and in effect is a civil dispute in nature and the provisions of Section 133(1)(c) & (f) of the Code of Criminal Procedure does not attract. The petitioner herein made an application under Section 133 of the Code of Criminal Procedure in the Court of learned Executive Magistrate, Jangipur praying for removal of blockade allegedly made by the opposite party herein on disputed 02 decimal of land in plot no. 1640. The learned Magistrate, upon consideration of the report of Revenue Officer and B.L. & L.R.O., Raghunathgunj, found that sketch map appended to the sale deed whereby the petitioner acquired the disputed property 02 decimal of land in plot No. 1640, does not tally with the sketch map prepared at the time of field inspection by the Revenue Officer and Amin. The learned Magistrate found that the dispute between the parties is civil in 2 nature and the provisions of Section 133 of the Code of Criminal Procedure are not attracted to that kind of dispute.
Md. Sabir Ahmed, learned advocate appearing on behalf of the petitioner, submits that the learned Magistrate failed to consider the contents of the reports placed before him. In both the reports it has been specifically mentioned that the road for ingress to and egress from the disputed property has been blocked by way of fencing. Mr. Ahmed submits that the learned Magistrate was oblivious of this factual aspect and passed the impugned order dropping the proceeding classifying it to be a civil dispute wherein the provisions of Section 133 of the Code of Criminal Procedure is not attracted.
Mr. Sandip Chakraborty, learned advocate appearing on behalf of the opposite party no. 2, submits that the dispute in between two private parties was over a private property, which cannot be subject matter of Section 133 of the Code of Criminal procedure. There is nothing illegality and impropriety in the order impugned necessitating interference of this Court.
I have carefully gone through the petition under Section 133 of the Code of Criminal Procedure filed by the petitioner in the learned Court of Execution Magistrate. The petitioner alleged to have purchased the disputed 02 decimal of land in plot no. 1640 in November, 2007. There is sketch may appended to the Sale Deed No. 5929 dated 14.11.2007. The moram road near his house situated in Plot no. 1639 was used for ingress to and egress from that disputed area of plot no. 1640. The opposite party alleged to have 3 obstructed that pathway and for that, petitioner initiated the proceeding under Section 133 of the Code of Criminal Procedure.
I find that the learned Magistrate has passed conditional order at the initial stage without giving the opposite party any opportunity to be heard. In a revisional application, being C.R.R. 2302 of 2009, this Court directed the learned Magistrate to issue notice upon the opposite party and heard both the parties before disposing of the matter. Thereafter, the learned Magistrate issued notice upon the opposite party, collected reports from the authorities concerned and passed the impugned order whereby and whereunder it has been decided that the dispute is exclusively civil in nature and provisions of Section 143 of the Code of Criminal Procedure are not attracted.
Mere reading of sub-section (1)(a) of Section 133 of the Code of Criminal Procedure makes it abundantly clear that obstruction, if made, in any public place, which is or may be lawfully used by the public, Magistrate can remove such obstruction by passing appropriate order invoking its power under Section 133 of the Code. In other words, the provisions of Section 133 of the Code of Criminal Procedure does not apply to private path. Pathway in dispute is not a pathway used by public in general. It is a private pathway either of the parties to the litigation. Therefore, the learned Magistrate hardly had any power under Section 133 of the Code of Criminal Procedure to remove any such blockade made on private pathway. As the dispute is between two private parties and the disputed property is not a 4 public property, the provision of Section 133 of the Code of Criminal Procedure is not attracted.
Mr. Chakraborty refers decisions in Md. Basar Ali Molla & Ors. Vs. State of West Bengal & Ors., reported in (2007)2 C Cr LR (Cal) 119, and Sambhu Nath Pandey vs. Smt Joyshree Sinha & Ors., reported in 1999 C Cr LR (Cal) 376 in support of his contention that the learned Magistrate was absolutely right in coming to a conclusion that the dispute is of civil in nature and in between two private parties as such, the provisions of Section 133 of the Code of Criminal Procedure is not attracted.
I find merit of the submission of the learned advocate appearing for the opposite party. At the cost of reiteration, I would like to say that when blocked of pathway allegedly made is not used by public in general, the learned Execution Magistrate should not exercise its power under Section 133 of the Code of Criminal Procedure in order to remove such a blockage on the private pathway. Section 133 of the Code of Criminal Procedure does not empower a Magistrate to do so. Therefore, the order impugned is not required to upset.
With the aforementioned observations, this revisional application stands dismissed and disposed of accordingly.
Interim order, if any, stands vacated.
There will, however, be no order as to costs.
Let Photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities. 5
(Kanchan Chakraborty, J)