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1988 DIGILAW 46 (CAL)

Latika Pramanik v. State

1988-02-18

SANKAR BHATTACHARYYA

body1988
ORDER 1. This revisional application seeks to assail the order passed on 3.6.85 by learned Sub-Divisional Judicial Magistrate, Midnapore, directing delivery of the seized paddy and straw to the opposite party no.2 2. The facts culminating in the revisional application are, briefly, as under petitioner no.1 is the first wife of one Ananta Pramanick and opposite Party no.2 is his second wife Petitioner 2 and 3 are the brothers of Ananta. 3. Plot Nos. 149, 150, 151 and 348 of mouza Benagerya are owned by the opposite party no.2 under whom the petitioners used to cultivate the lands as labourers. They have also their own lands under their cultivation in the year 1984 opposite party no.2 by an application before this Court under Article 226 of the Constitution, obtained an order restraining them from going upon the aforementioned plots of lands. 4. The petitioners, however, harvested paddy from their own lands not governed by the restraint order passed by this court. A portion of the harvested paddy was ostred in the house of the petitioner no.1, while the rest was being threshed within the compound of the Benagerya primary School. 5. On 29.11.84 one Sk. Golam Ali, on behalf of the opposite party no.2 lodged a complaint at the Chandrakona Police Station to the effect that one Anil Roy and 50/60 others had harvested paddy from the lands of the opposite party no.2. The information was only diarised but no case was started. On 6.12.84 the police seized the paddy and straw from the house of the petitioner no.1 as well as from the compound of the Benagerya Primary School and kept the same in the custody of the Pradhan, Jara Gram Panchayat. 6. Both the petitioners and the opposite party no.2 made rival claims before the learned Sub-Divisional Judicial Magistrate for return of the seized paddy and straw but the learned Sub-Divisional Judicial Magistrate rejected the petitioner’s prayer and directed the seized paddy and straw to be delivered to the opposite party no.2. This order of the learned Sub-Divisional Judicial Magistrate is under challenge in this revisional application. 7. Mr. Middya, learned Advocate for the petitioners, has assailed the impugned order on the following grounds: 1) In the complaint lodged at the Chandrakona Police Station Sk. This order of the learned Sub-Divisional Judicial Magistrate is under challenge in this revisional application. 7. Mr. Middya, learned Advocate for the petitioners, has assailed the impugned order on the following grounds: 1) In the complaint lodged at the Chandrakona Police Station Sk. Golam Ali on behalf of the opposite party no.2, there was no allegation against the petitioners and the case of the opposite party no.2 was that the paddy standing on lands was harvested by one Anil Roy and 50/60 others. 2) Though the learned Sub Divisional Judicial Magistrate purported to pass the impugned order in exercise of his powers under s.457 of the Code of Criminal Procedure, the section was not attracted at all as there was no inquiry or trial pending before him. 3) Assuming that s.457 of the Code of Criminal Procedure had any application to the case, the learned Sub-Divisional Judicial Magistrate could not direct delivery of the seized paddy and straw to the opposite party no.2 without first determining which of the parties was actually entitled to the possession thereof. 4) Since in the complaint to the Police the description of the variety of the paddy harvested from the lands of opposite party no.2 was not given the learned Sub-Divisional Judicial Magistrate had absolutely no material before him to indicate that the seized paddy and straw actually belonged to the opposite party no.2 and that she was entitled to the possession thereof. 8. Having heard Mr. Middya, learned Advocate for the petitioners. Mr. Biswas, learned Advocate for the opposite party no.2 and Mr. Chatterjee learned Advocate for the State. I am of the opinion that the order passed by the learned Sub-Divisional Judicial Magistrate is clearly illegal and unsupportable and must be set aside. 9. Section 457 Cr.P.C. is attracted where the seizure of property by any police officer is reported to a magistrate under the provisions of the Code and such property is not produced before the Criminal Court during any inquiry or trial. In the instant case, as pointed out already, not only there was no inquiry or trial but even no case was registered by the police. Since there was neither investigation nor any prosecution, the learned Sub- Divisional Judicial Magistrate should have directed delivery of the seized paddy and straw to the petitioners from whom the property was seized. 10. In the instant case, as pointed out already, not only there was no inquiry or trial but even no case was registered by the police. Since there was neither investigation nor any prosecution, the learned Sub- Divisional Judicial Magistrate should have directed delivery of the seized paddy and straw to the petitioners from whom the property was seized. 10. In the complaint to the Police made on behalf of the opposite party no.2, there was no indication as regards the variety of the paddy harvested from her lands. There was also no indication that the harvesting was done by the petitioners themselves or by their men. The petitioners have averred in paragraphs 2 and 3 of the revisional application that they have lands of their own and that the paddy seized from their possession by the police was the produce of their own lands. These averments have not been controverted by the opposite party no.2. 11. The complaint was made on 29.11.84 and the seizure was made on 6.12.84. The learned Sub-Divisional Judicial Magistrate, in his order, observed as follows: “From the papers before me I find that the paddy was harvested from the lands belonging to the petitioner (opposite party no.2 in this application). It is not a proper place to discuss and decide about the ownership of the lands in question. It is clear that the paddy was harvested from the lands of the petitioner and those paddy and straw with paddy were harvested from the lands of the petitioner and those paddy and straw with paddy were seized from the primary school maidan and also from the house of Latika Pramanik (petitioner no.1 herein)” 12. It is not known what papers were actually produced before the learned Sub-Divisional Judicial Magistrate. Also it is not understandable how the papers produced could show the ownership of the harvested paddy or of the lands from which the harvesting was done. Papers could only show possession of lands. Nothing short of the evidence of the eye-witnesses could establish the identity of the lands from which the standing crops were harvested or of the harvested crops. The opposite party no.2 (petitioner before the learned. Sub-Divisional Judicial Magistrate) is admittedly the owner of plot nos. 149, 150,151 and 348. Papers could only show possession of lands. Nothing short of the evidence of the eye-witnesses could establish the identity of the lands from which the standing crops were harvested or of the harvested crops. The opposite party no.2 (petitioner before the learned. Sub-Divisional Judicial Magistrate) is admittedly the owner of plot nos. 149, 150,151 and 348. But that does not necessarily indicate that the paddy and straw seized by the Police were harvested from those lands, specially, when the petitioners have lands of their own and their case, which remains uncontrovered, is that the paddy and straw seized by the Police were harvested from their own lands. 13. It seems to me that very basis of the order passed by the learned Sub-Divisional Judicial Magistrate is misconceived and unfounded and the order cannot, therefore, be sustained. In my view, since the opposite party no.2 could not establish her claim to the seized paddy and straw and no case was registered against the petitioners the proper course would be to direct delivery of the seized paddy and straw to the petitioners from whom the property was seized. 14. For the foregoing reasons, the revisional application is allowed, the impugned order is set aside and the Rule is made absolute. The seized paddy and straw be returned to the petitioners forthwith. Rule made absolute; direction given.