NITYA RANJAN DUTT v. GITA RANI — 1985 DIGILAW 374 (CAL)

S. P. D. GHOSH, J. ( 1 ) THIS revisional application arises out of an order passed by the learned Sub- Divisional Magistrate Rampurhat, in a case under section 144 Cr. P. C. ( 2 ) IT appears that on 25. 5. 1985, the opposite party No. 1, Gita Rani Boral, filed a petition under section 144 Cr. P. C. against the petitioner, Nitya Ranjan Dutta, in the court of the learned Sub- Divisional Magistrate, Rampurhat. The learned Magistrate perused the petition and was satisfied about apprehension of serious branch of peace over the possession of shop situated on the disputed plot No. 65 of Mouza Bhadiswar. By that order dated 25. 5. 1985, the learned Sub- Divisional Magistrate, Rampurhat drew up a proceeding under section 144 Cr. P. C. against both the parties, restraining them from entering into the disputed shop complot. The learned Magistrate directed that if aggrieved by that order; the parties could show cause by 15. 6. 1985. The petitioner showed cause on 15. 6. 1985. Prior to the showing of cause by the petitioner, the opposite party No. 1 filed a petition on 3. 6. 1985 for vacating the proceeding against her. The learned Magistrate sent that petition filed by the opposite party No. 1 on 3. 6. 1985 to the officer in-charge, Murarai P. S. who was directed to enquire and to send a report as to possession and as to whether there was apprehension of breach of the peace. The case was fixed by that order on the date fixed (15. 6. 1985 ). There was no police report on 15. 6. 1985. The officer in charge, Murarai P. S. prayed for time. Accordingly, by an order passed on 15. 6. 1985, the learned Magistrate fixed the case on 5. 7. 85 for report and hearing. Instead of taking up the matter for hearing on 5. 7. 1985, the learned Magistrate took up the case record on 18. 6. 85 on the prayer of the opposite party No. 1. The police report was submitted on 17. 6. 1985. After perusing that report of the Police and hearing the learned Advocate for the opposite party No. 1, the learned Magistrate was satisfied on 18. 6. 1985 that the opposite party No. 1 was in possession of the disputed premises. On 18. 6. The police report was submitted on 17. 6. 1985. After perusing that report of the Police and hearing the learned Advocate for the opposite party No. 1, the learned Magistrate was satisfied on 18. 6. 1985 that the opposite party No. 1 was in possession of the disputed premises. On 18. 6. 1985, the learned Magistrate discharged the opposite party No. 1 from the proceeding under section 144 Cr. P. C. with direction that the proceeding would continue against the petitioner. By that order dated 18. 6. 1985, the learned Magistrate directed the officer in-charge, Murarai P. S. under whose custody the premises was then lying, to make over possession of the premises to the opposite party No. 1, on proper inventory of the articles inside the premises. This order was carried out by the officer incharge, Murarai P. S. and the possession of the premises was made over to the opposite party No. 1. Subsequently, on 24. 6. 1985, the petitioner moved this court against the orders passed by the learned Magistrate on 25. 5. 1985, 3. 6. 1985, and 18. 6. 1985. A Rule was issued and ad interim stay of operation of these orders dated 25. 5. 1985, 36. 1905 and 18. 6. 1985 was granted by this court till the disposal of the rule. Thereafter two applications were filed. One of these applications was by the petitioner who prayed for passing a further interim order directing the opposite party No. 1 to place the disputed show room together with the properties or articles mentioned in the list of inventory made by the police on 19. 6. 1985 in the custody of the officer in-charge, Murarai P. S. and to restore the position as it obtained prior to 18. 6. 1985, when the learned Magistrate discharged the opposite party No. 1 from the proceeding under section 144 Cr. P. C. The other application has been filed by the opposite party No. 1 with a prayer for vacating or modifying the ad interim order of stay passed by this court on 24. 6. 1985, as the petitioner may be trying to occupy the disputed show rooms forcibly and illegally in pursuance of the order of ad interim stay by which all further proceedings in the court of the learned Magistrate in the case have also been stayed by this court. 6. 1985, as the petitioner may be trying to occupy the disputed show rooms forcibly and illegally in pursuance of the order of ad interim stay by which all further proceedings in the court of the learned Magistrate in the case have also been stayed by this court. Both these applications as well as the rule have been heard together, as desired by both the parties. ( 3 ) THE contention of Mr. Sen Gupta, learned Advocate for the petitioner, is that the impugned order dated 18 6. 1985, passed by the learned Magistrate is an illegal order, inasmuch as the petitioner was no heard after he showed cause on 15. 6. 1985. It is alleged that in the police report dated 17. 6. 1985, there is no mention about any apprehension of the breach of the peace regarding possession of the disputed show rooms. As the officer in charge Murarai P. S. has made over possession of the premises to the opposite party No. 1 on the has is of the order dated 18. 6. 1985, Mr. Sen Gupta contends that the possession of these show rooms should be with the officer incharge, Murarai P. S. till the disposal of the rule. To support his contention, Mr. Sen Gupta has relied on several cases. According to him, an order under section 144 Criminal Procedure Code does not confer any power on the executive Magistrate to adjudicate or decide dispute of a civil nature or question of title to property or entitlements to rights. This is also the view of the Supreme Court in the case of Gulam Abbas v. State of U. P. 1. Mr. Sen Gupta contends that though the period of two months mentioned in section 144 (4) Criminal Procedure Code has since expired from the making of the initial order dated 25. 5. 1985, by the learned Magistrate, this court can nevertheless interfere with the impugned order dated 18. 6. 1985. To support this contention, Mr. Sen Gupta has referred to the case of Lakshman Hermul v. Mannan Mollah2. According to Mr. Sen Gupta, this court can restore possession of the disputed show rooms to the officer in charge, Murarai P. S. on the basis of the decisions in the cases of Bhagwandas v. Dhanmelal3 and Ganga Cold Storage Co. Ltd. v. State of West Bengal4. Me. According to Mr. Sen Gupta, this court can restore possession of the disputed show rooms to the officer in charge, Murarai P. S. on the basis of the decisions in the cases of Bhagwandas v. Dhanmelal3 and Ganga Cold Storage Co. Ltd. v. State of West Bengal4. Me. Sen Gupta has also referred to the case of Rabindra Kumar Mitra v. State of West Bengal5 and has argued that section 144 Criminal Procedure Code cannot be intended to give undue advantage to one of the contending parties against the other. ( 4 ) ME. Maitra learned Advocate appearing for the opposite party No. 1, has contended that the decisions referred to by Mr. Sen Gupta cannot have any application in this case, inasmuch as, the period of two months already elapsed from the date of the order dated 25. 5. 1985, by which the proceeding under section 144 Criminal Procedure Code was initiated by the learned Magistrate. Mr. Maitra has referred to the cases of J. A. Thomson v. The Emperor6, Ram Narain v. Parmeshar Prasad7, Santosh Nayek v. Pradip Moulick8, Rashid Allidina v. Jiwandas Khemji9, and Jagadishwaranand v. Police Commissioner, Calcutta10, and has argued that when the life of an order under section 144 Criminal Procedure Code is only two months, this court cannot direct restoration of the possession of the premises to the officer in charge, Murarai P. S. According to Mr. Maitra, the Rule is to be discharged, specially when, in the criminal revision application file on 24. 6. 1985, there was no mention by the petitioner that the order dated 18. 6. 1985, passed by the learned Magistrate was also executed by the officer in-charge, Murarai P. S. ( 5 ) MR. Chatterjee, learned Advocate for the State, has contended that as the period of two months mentioned in section 144 (4) Criminal Procedure Code has already expired from the date of initiation of the proceeding on 25. 5. 1985, this Court should not pass any order in favour of the petitioner. ( 6 ) AFTER hearing the parties, it appears that what has been done by the learned Magistrate is a gross illegality. The learned Magistrate directed the petitioner to show cause on 15. 6. 1985. The petitioner showed cause on 15. 6. 1985. Instead of taking up the matter for hearing further on 5. 7. ( 6 ) AFTER hearing the parties, it appears that what has been done by the learned Magistrate is a gross illegality. The learned Magistrate directed the petitioner to show cause on 15. 6. 1985. The petitioner showed cause on 15. 6. 1985. Instead of taking up the matter for hearing further on 5. 7. 1985, as fixed by him by his order dated 15. 6. 1985 the learned Magistrate was not justified in passing an order on 18. 6. 1985, on the prayer of the opposite party No. 1, and after perusal of the police report dated 17. 9. 1985 directing the officer in-charge, Murarai P. S. to make over possession of the premises to the opposite party No. 1, on proper inventory of the articles inside the premises as the premises was then in the custody of the officer in-charge, Murarai P. S. It is to be stated in this connection that over an alleged occurrence on that night of 24. 5. 1985, and 25. 5. 1985, there was a case, being Murarai P. S. case No. 10 dated 25. 5. 1985, against Satya Ranjan Dutta, the father of one Paresh Nath Dutta and others under section 461/379 Indian Penal Code on an information lodged by the opposite party No. 1. The opposite party No. 1 claims tenancy of the disputed show rooms under one Pratibha Sundari Dutta since 1955. The petitioner alleges that the disputed show rooms belong to Paresh Nath Dutta by purchase from Pratibha Sundari by a deed of sale dated 6. 5. 1983, registered on 7. 5. 1985. Paresh is the nephew of the petitioner. The police report dated 17. 6. 1985 was to the effect that one Lakshroi Narayan Boral, relative of the opposite party No. 1, used to run a radio shop and a stationary shop under the name of Kedar Nath Stores in plot No. 65, of Mouza Bhadiswar since 1957 and that after the death of Lakshmi Narayan in 1974, the shops remained closed. The police report was to the effect that rent was last paid for 1388 B. S. by the opposite party No. 1 to Pratibha Sundari the owner of the plot, on 18. 7. 1981. It was further stated in the police report that Paresh purchased the disputed shops from Pratibha Sundari on 17. 5. The police report was to the effect that rent was last paid for 1388 B. S. by the opposite party No. 1 to Pratibha Sundari the owner of the plot, on 18. 7. 1981. It was further stated in the police report that Paresh purchased the disputed shops from Pratibha Sundari on 17. 5. 1985, though the case of the petitioner is that the deed in favour of Paresh by Pratibha Sundari was registered on 7. 5. 1983. Be that as it may, the question involved in the case was a question of title of the parties to the disputed show rooms and the entitlement of any of the parties to possess these rooms. Instead of fighting out the question of title or the question of entitlement to any right in the show rooms in the civil court, the opposite party No. 1 chose to move the court of the learned Executive Magistrate. The learned Executive Magistrate was not entitled in the garb of an order under section 144 Criminal Procedure Code, to restore possession of the show rooms to the opposite party No. 1 after the show rooms were locked by the officer in charge, Murarai P. S. in connection with Murarari P S. Case No. 10 dated 25. 5. 1985 under section 461/379 Indian Penal Code on the information lodged by the opposite party No. 1. ( 7 ) THE question is whether, in the aforesaid circumstances, the Rule should be discharged as the period of two months has already expired since the passing of the order dated 25. 5. 1985, from which date time is to be counted in the present case. It is well settled that the life of an order under section 144 Cr. P. C. is two months. The decisions cited by Mr. Maitra go to show this conclusively. The decision in the case of Ganga Cold Storage, Co. Ltd. v. State of West Bengal (supra), referred to by Mr. Sen Gupta, does not apply in the present case, as this is not a case under Article 226 of the Constitution. Even then the question is whether the mischief committed by the order of the learned Magistrate dated 18. 6. 1985 should be allowed to continue because the period of two months mentioned in section 144 (4) Cr. P. C. has already expired or whether something should be done to undo the mischief. Even then the question is whether the mischief committed by the order of the learned Magistrate dated 18. 6. 1985 should be allowed to continue because the period of two months mentioned in section 144 (4) Cr. P. C. has already expired or whether something should be done to undo the mischief. It is to be stated, in this connection, that justice is more important than law, though justice is to be administered in accordance with law. Even, in respect of orders passed by an Executive Magistrate under section 144 Cr. P. C. the High Court has, in exercise of its inherent power under section 482 Cr. P. C. power to undo any mischief done by any Executive Magistrate. This is the view taken in the case of Bhagwandas v. Dhanmelal (supra ). This is presumably also the view taken by a Division Bench of this court in an unreported decision in Criminal Revision No. 2164 of 1934 (In re: Sunil Majumdar) disposed of on 9. 11. 1984, wherein Their Lordships were pleased to direct restoration of possession in a proceeding under section 144 Cr. P. C. If there would not have been any order by the learned Magistrate on 18. 6. 1985, directing restoration of possession of the show rooms to the opposite party No. 1 on proper inventory of articles by the officer in charge, Murarai P. S. this court would not have interfered with the order dated 25. 5. 1985, passed by the learned Magistrate because the period of two months have expired since the passing of that order. When, however, in a proceeding under section 144 Cr. P. C. involving disputed question of title to on entitlement to right to the disputed show rooms, the learned Magistrate has directed, by the impugned order dated 18. 6. 1985, restoration of possession of the show rooms to the opposite party No. 1, after the show rooms were kept under lock and key by the officer in-charge, Murarai P. S. in connection with Murarai P. S. Case No. 10 dated 25. 5. 1985 and not in pursuance of any order of the learned Magistrate in the proceeding under section 144 Cr. P. C. this court will have power, on the basis of the provisions in section 482 Cr. 5. 1985 and not in pursuance of any order of the learned Magistrate in the proceeding under section 144 Cr. P. C. this court will have power, on the basis of the provisions in section 482 Cr. P. C. to interfere by directing restoration of possession of these show rooms to the officer in-charge, Murarai P. S so that the patties can fight out their cases in the civil court or appropriate order regarding the show rooms, kept under lock and key by the officer in-charge, Murarai P. S. may be passed by the appropriate Magistrate. ( 8 ) THE impugned order dated 18. 6. 1985, passed by the learned Magistrate is, accordingly, set aside. The prayer of the opposite party No. 1 for setting aside the order of the interim stay passed by this Court in this revisional application on 24. 6. 1985, is allowed and the order of interim stay is vacated. The prayer of the petitioner by his application for restoration of possession of the disputed show rooms together with the properties mentioned in the list of inventory made by the police on 19. 6. 1985, in the custody of the officer in-charge, Murarai P. S. is allowed. The learned Magistrate is directed to take steps within seven days of the receipt of this order in his court for restoration of possession of the disputed premises (the show rooms) together with the properties and/or articles, as mentioned in the list of inventory made by the police on 19. 6. 1985, in the custody of the officer in-charge, Murarai P. S. and to report to this court compliance of this order within fifteen days of the restoration of possession of the disputed show rooms together with the properties/articles mentioned in the list of inventory to the custody of the officer in-charge, Murarai P. S. After the report of compliance is received by this court from the learned Magistrate, the Rule will be disposed of in terms of this order. The applications filed by the petitioner and the opposite party No. 1 are, accordingly, disposed of. ( 9 ) LET this order be communicated to the court below by a special messenger at the cost of the petitioner.