Gauhati High Court
Badrul Islam Laskar vs The State Of Assam And Anr on 20 October, 2022
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/6
GAHC010247452019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1254/2019
BADRUL ISLAM LASKAR
S/O SAMSUR UDDIN LASKAR, R/O VILL-NATUN RAMNAGAR PART IV, P.S.-
SONAI, DIST-CACHAR (ASSAM), PIN-788119
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:ULFAT ALI LASKAR
S/O LT. RIAZ ALI LASKAR
R/O VILL-NATUN RAMNAGAR PART-IV
P.S.-SONIAI
DIST-CACHAR (ASSAM)
PIN-78811
Advocate for the Petitioner : MR. L R MAZUMDER
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 20.10.2022 Heard Mr. L.R. Mazumdar, learned counsel for the petitioner and Mr. RJ Baruah, learned Additional Public Prosecutor, Assam. Also heard Mr. TU Laskar, learned counsel Page No.# 2/6 for the respondent No. 2.
2. By this petition under Section 482 Cr.P.C., the petitioner has challenged the legality and correctness of the impugned judgment and order, dated 18.09.2019 passed by the learned Additional Sessions Judge, F.T.C., Cachar at Silchar whereby the Criminal Revision No. 54/2019 has been allowed setting aside the order passed by the learned Additional District Magistrate, Cachar, Silchar, dated 16.05.2019 passed in Case No. 203M/2019 drawing up a proceeding under Section 145 Cr.P.C. and passed an order of attachment of the disputed land under Section 146(1) Cr.P.C..
3. The petitioner's case precisely is that the petitioner filed a complaint petition before the learned Additional District Magistrate, Cachar, Silchar with a prayer for drawing up a proceeding under Sections 145/146 (1) CrPC. which was registered as Case No.203 M/2019 and the learned Additional District Magistrate on being satisfied with the complaint petition along with the police report thereon drew up a proceeding under Section 145 (1) CrPC and also attached the disputed land under Section 146 (1) CrPC vide order, dated 16.05.2019 and issued notice to the respondent for filing written statement by the next date fixed.
4. Being aggrieved by the aforesaid order, dated 16.05.2019, passed by the learned Additional District Magistrate, Cachar, Silchar, the respondent No. 2 preferred a Criminal Revision Petition before the learned Sessions Judge, Cachar, Silchar which was registered as Criminal Revision Petition No. 54/2019 and the Court of learned Additional Sessions Judge, Cachar, Silchar to whom the revision was made over for disposal, after hearing both the parties vide order dated 18.09.2019, set aside and quashed the aforementioned order, dated 16.05.2019 of the learned Additional District Magistrate.
5. Aggrieved with the aforesaid order, dated 18.09.2019, the petitioner has preferred the instant petition praying for quashing and setting aside the aforesaid impugned order, dated 16.05.2019, passed by the learned Additional Sessions Judge, Page No.# 3/6 F.T.C., Cachar, Silchar.
6. Mr. L.R. Mazumdar, learned counsel appearing for the petitioner, contended that while passing the order, dated 18.09.2019, the learned Additional Sessions Judge, F.T.C., Cachar at Silchar came to a perverse finding that the dispute was a private dispute and failed to appreciate that the learned Additional district Magistrate, Cachar at Silchar passed the aforesaid order, dated 16.05.2019, based on his subjective satisfaction on the police report and the contentions made in the petition. Further, Mr. Mazumdar contended that the learned revisional court failed to appreciate that no revision petition lies against an interlocutory order. Therefore, Mr. Mazumdar, learned counsel for the petitioner, emphatically submitted that the matter may be remanded to the learned court below setting aside the impugned judgement and order. Learned counsel has relied on the judgments rendered in Indrapuri Primary Co-operative Housing Society Ltd & Anr. Vs. Bhabani Gogoi reported in 1991 1 GLR 28; Selim Uddin Barbhuiya Vs. Tajmal Ali Barbhuiya & 4 others in Criminal Petition No. 282/2013 and Jesmin Rahman Vs. Afruza Begum @ Anr, reported in 2008 GLT (Crl.) 94.
7. Mr. RJ Barauh, learned Additional Public Prosecutor for the State/ respondent No.1, submitted that the State is only a formal party in the instant petition.
8. Mr. TU Laskar, learned counsel appearing for the respondent No.2, contended that the respondent No.2 has been in physical possession over the disputed land with clear boundary and as such, the order of the learned Additional District Magistrate, Cachar, Silchar having substantially affected his right cannot be said to be an interlocutory order. Therefore, Mr. Laskar, learned counsel submitted that the revision petition was maintainable under Section 397 Cr.P.C. before the court of learned Sessions Judge, Cachar at Silchar.
9. I have considered the above submissions made by the learned counsel of both sides and perused record. Also perused the citations referred to above.
10. The order, dated 16.05.2019, passed by the learned Additional District Page No.# 4/6 Magistrate, Cachar in Case No. 203 M/2019, which was impugned in Crl. Revision No. 54/2019, read as hereunder:
"Order 16.05.2019- Case record received and transferred in my file. Perused the complaint petition along with police report with Xerox copy of land documents submitted by 1. Badrul Islam Laskar, S/o Lt. Samsur Uddin Laskar of Ramnagar Pt-IV, P.S.-Sonai, Dist-Cachar, Assam against, 1. Ulfat Ali Laskar, S/o Lt. Riaj Ali Laskar, 2. Rina Begum Laskar, W/O Ulfat Ali Laskar, 3. Alinur Ali Laskar S /O Lt. Tahir Ali Laska , 4 . Liyakot Ali Laskar, S/O Mona Mia Laskar, 5. Ayub Ali Laskar, S/o, Basarat All Laskar , 6. Chankine Begum Laskar , W/O Ayub Ali Laskar, 7. Unai Bibi Laskar, D/O Riyaj Ali Laskar, 8. Sayad Ali Laskar, S/O Lt. Nichar All Laskar all are of Dakhin Mohanpur Pt- X, PS Sonai, Dist. Cachar, Assam.
Heard the Ld. lawyer for the 1 " party petitioners at length.
On perusal of police report and on hearing the submission made by the ld. lawyer for the 1st party, I am of the opinion that the dispute between the land of both parties in respect of possession of the D/L which may lead to serious apprehension of breach of peace and public tranquillity in the locality .
Therefore , I am satisfied to draw up a proceeding u / s 145 Cr.P.C. and ask both the parties to file W/S in respect of claims over the D / L on the next date fixed which is also fixed for hearing.
Further, to contain any immediate threat to public peace and tranquillity, I do hereby attach the D/L U/S 146(i) Cr.P.C. and restrain both the parties from entering into the D / L until further orders Considering the emergent situation order is passed exparte.
Ask local police to execute the order and maintain peace in the locality. Date fixed : 6/6/2019 for W/s by both the parties.
Schedule of D / L : Dist . Cachar, PS : -Sonai , Ph : - Bonraj , Mouza : -Nutan Ramnagar Pt - IV , 2 RS Patta No. 55 Dag No. 370/374 total area of land measring 1 Bigha 4 Kathas , 4 Chatak which is bounded by : -East Remaining of land same patta , West : -Land of Ayub Ali . North : - Remaining of Land same patta , South Land of Dag No. 374 .
Sd / -L . Rongpipi ADM , Cachar ."
11. A perusal of the above preliminary order shows that while passing the aforesaid order under Section 145(1) Cr.P.C., the learned Additional District Magistrate recorded reasons in regard to his satisfaction based on the complaint petition along with the police report thereon as to the existence of the dispute over a plot of land between the parties giving rise to apprehension of breach of peace and public tranquillity in the locality. The aforesaid order required the parties to attend the court on 06.06.2019 Page No.# 5/6 and put their written statement as to actual possession over the disputed land, the schedule of which was described.
12. It may be noted that the condition precedent for invoking jurisdiction under Section 145 Cr.P.C. is the dispute or controversy in respect of actual possession, giving rise to apprehension of breach of public peace. Ex-facie, thus, the aforesaid preliminary order satisfied all the requirements of Section 145(1) Cr.P.C. Therefore, as stated in the order 'to contain any immediate threat to public peace and tranquillity', the learned Additional District Magistrate placed the disputed land under attachment under Section 146(1) Cr.P.C. and thereby restrained both the parties from entering into the disputed land. The subjective satisfaction of the Additional District Magistrate about the existence of an emergency situation necessitated attachment of the disputed land.
13. In Jesmin Rahman (supra), this Court held that the various provisions contained in Chapter-X Cr.P.C., in substance, deals with maintenance of public order and tranquillity and as such, a private dispute or a dispute, which has no bearing on public order and tranquillity cannot be regarded as a dispute and such a dispute does not empower an Executive Magistrate to assume jurisdiction under Sub-Section (1) of Section 145 Cr.P.C.
14. In paragraph 10 of the judgment of this Court rendered in Indrapuri Primary Co-Operative Housing Society Ltd. (supra), this Court explained what is an interlocutory order as follows:
"10. The above discussions may now be summarized. Interlocutory orders are all those orders passed between the commencement and the final order terminating the proceedings either in the main proceeding or in a part of the proceeding or in an ancillary proceeding arising out of the main proceeding. There are routine orders passed in the course of the proceeding. There are interlocutory orders which are a step towards the decision of the dispute or controversy between the parties by way of final order. There are orders which though called an interlocutory order which decide matter of moment and which Page No.# 6/6 affects vital and valuable rights of the parties. There are interlocutory orders containing traits and trappings of finality either when the orders decide the dispute between the parties in the main proceeding or in an ancillary proceeding or in a part of the proceedings. There are discretionary orders that may be termed as interlocutory orders."
15. In the above judgment in paragraph 13, it was held that a preliminary order under Section 145(1) Cr.P.C. is not an interlocutory order. It was further held that an order under Section 146(1) Cr.P.C. being an interlocutory order, no revision lies against such order which is temporary or momentary in nature.
16. In the above backdrop of facts and circumstances and in the light of the settled proposition of law on the subject, the revision petition under Section 397 Cr.P.C. being maintainable against a preliminary order passed under Section 145(1) Cr.P.C., the petition stands partly allowed and the matter is remanded back to the court of learned Sessions Judge, Cachar at Silchar in so far as it relates to drawing up of proceeding under Section 145(1) Cr.P.C., only.
The interim stay order, dated 30.10.2019 stands vacated.
With the above direction, the petition stands disposed of.
JUDGE Comparing Assistant