Patit Paban Ghosh v. Mrityunjoy Sen — 1991 DIGILAW 484 (CAL)

ORDER This revisional application is directed against the order passed on 21.3.91 by the Executive Magistrate and Metropolitan Magistrate, 11th Court, Calcutta in Case No. M-940 of 1989 and for quashing the case/proceeding in which the said order was passed. 2. On 20.9.89 Mrityunjoy Sen, the opposite party in the instant revision filed an application under s. 107 of the Code of Criminal Procedure against the present petitioners alleging inter alia that be and his wife being the owners of premises no. 118C AJC Bose Road were residing in the eastern side flat of the said premises, that the opposite parties i.e. the present petitioners were lessee in respect of the western side flat on the second floor of the said premises for a period of 21 years commencing from 1st March 1985. that the opposite parties constantly threatened the petitioner i.e. the present opposite party for non-supply of Sufficient water, committed nuisance by throwing water on stair case and on the common passage find that on 1.9.89 the opposite party forcibly attempted to take water from the tap of the ground floor meant for the shop-keepers of the ground floor and also tried to use the latrine of the ground floor meant for the tenants of the ground floor. It was also alleged that again on 6.9.89 the opposite party without any reason or cause uttered abusive languages against the petitioners and his family members over supply of water to him and threatened the petitioner with dire consequence in case of non-supply of sufficient water. It was also alleged that the opposite party used to bring undesirable person to his flat and caused noises to the inconvenience of the children of the petitioners who were the students. According to him there was serious apprehension of breach of peace and public tranquility in the locality and so he prayed for drawing up a proceeding against the opposite parties under s. 107. It appears that the learned Executive Magistrate called for a report from the O.C. of the Police Station concerned and on consideration of the petition under s. 107 and the police report, the learned Executive Magistrate by his order dated 11.12.89 drew up a proceeding against the opposite parties under s. 107 of the Code of Criminal Procedure and issued notice upon them to show cause as to why they would not execute a bond of Rs. 500/- each for a period of six months and for keeping peace and geed behaviour with the petitioner as prayed for by him in his petition under s.107 of the Code of Criminal Procedure. The opposite parties i.e. the present petitioners, however, moved this Court in Criminal Revision No. 762 of 1990 challenging the order whereby the proceeding under s.107 of the Code of Criminal Procedure was drawn up and quashing the proceeding in which such order was made. The present petitioners challenged the said proceeding on the ground that the notice issued under s. 111 of the Code of Criminal Procedure was not in conformity with the provision of s. 111 of the said Code and that the learned Executive Magistrate drew up the proceeding without recording his satisfaction that there was sufficient grounds for proceeding. By order dated 1.11.90 Mr. Justice A.K. Nayak sitting singly upheld both the grounds, allowed the revisional application and made the rule absolute. By the same order he quashed the impugned proceeding with the observation that the learned Magistrate was at liberty to draw up a fresh proceeding. On 1.12.90 the petitioner, Mrityunjoy Sen filed two applications before the learned Executive Magistrate in Case No. M.940 of 1989-one for drawing up a fresh proceeding in terms of the order of the Court and other for bringing to the notice of the learned Executive Magistrate certain G.D. entries and the complaints lodged by him with Muchipara Police Station with a prayer to consider it along with the original petition under s. 107 filed en 20.9.89 and the police report dated 18 1189. On consideration of the petition under s. 107 of the Code of Criminal Procedure together with the police report and the petition filed by the petitioner the learned Executive Magistrate by his order dated 15.1.91 drew up a proceeding under s.107 and issued notice to the opposite parties calling upon them to show cause as to why they would not be required to execute a bond of Rs. 500/-each for a period of six months "for keeping peace and for becoming of good behaviour. 500/-each for a period of six months "for keeping peace and for becoming of good behaviour. The opposite parties therein i.e. the present petitioners filed a petition before the learned Executive Magistrate challenging the maintainability of the proceeding and contending that a fresh petition was required to be filed by the petitioner under s. 107 of the Code of Criminal Procedure in terms of the order passed by this Court in Criminal Revision No 762 of 1990. But the learned Executive Magistrate by his order dated 21.3.91 rejected the said petition. 3. Being aggrieved by such order of rejection and for quashing the proceeding drawn up by the learned Executive Magistrate by his order dated 15.1.91 the present petitioners have filed the instant revisions application challenging the legality and propriety of the said order and the proceeding. 4. Mr. Shekhar Kumar Basu, the learned advocate appearing for the petitioners has argued that, since the entire proceeding based on the petition under s. 107 filed on 20989 had been quashed by this Court and since no part of the proceeding had been retained, the learned Executive Magistrate committed an error in drawing, up a fresh proceeding on such petition and that he could have drawn up a fresh proceeding, as per liberty given by this Court upon a fresh petition to be filed by the petitioners. He argues that the incidents as alleged in 'the petition under s.10', are of trivial nature and are not to be dealt with under s. 107 and that the learned Executive Magistrate was not justified in drawing up a proceeding on such alleged incident of trivial nature. In support of his argument he has referred to a decision of a learned Judge of Bombay, High Court sitting singly in the case of Jayant D. Shah vs. Stale of Maharashrra reported in 1986(1) Crimes 405 . He bas also argued that there ought to be close proximity between the acts of the opposite parties and the order of the learned Executive Magistrate drawing up a proceeding under s. 107 and that the acts committed by the opposite parties in September 1989 cannot be valid ground for passing orders in January 1991. In support of his argument he has referred to a Full Bench decision of Kerala High Court in the case of Moidu v. State of Kerala reported in 1982 CRILJ 2293. In support of his argument he has referred to a Full Bench decision of Kerala High Court in the case of Moidu v. State of Kerala reported in 1982 CRILJ 2293. He has further argued that there must be formation of opinion by the Magistrate that there is sufficient ground for proceeding and that such formation may be made on specific information sufficient to take action or on satisfaction of the Magistrate. In support of his view he has referred to the decision 'of the Supreme Court in Madhu Limaye's, Case reported in AIR 1971 Supreme Court J486. He has further argued that on 15,1.91 while the impugned proceeding was drawn up there was no formation of opinion' by the Magistrate that there is sufficient ground for proceeding and that as such the impugned proceeding drawn up on 15.1.89 (91?) is bad in law and should be set aside. 5, Mr. DK. Sengupta, learned advocate for the petitioner in opposing the instant revision has argued that the entire proceeding was not quashed by Mr. Justice A.K. Nayak in Criminal Revision No. 762 of 1990, that only the proceeding so far as it related to issuance of notice under s. 111 was quashed, that Mr. Justice A.K. Nayak did not consider the merits of the case nor did direct fresh proceeding on fresh materials or fresh petition and that the learned Executive Magistrate in terms of the liberty given to him, rightly drew up a fresh proceeding in the same case on the same petition and on the same set of facts and, therefore, committed no error in this regard. In support of his view he has referred to the decision in the case of Smt. Tulsibala Rakshit vs. N N. Ghosal reported in 56 CWN 193. He bas further argued that the decision of the Bombay High Court in the case of Jayant D. Shah vs. State of Maharashtra (supra) that incidents of trivial nature cannot be any ground for drawing up a proceeding under s, 107 is not correct inasmuch as it failed to take note of the main purpose of s. 107 which is essentially preventive in nature and not punitive and can be invoked to avert the potential danger to the society. In this connection, he bas also referred to the decision of the Supreme Court in Madhu Limaye's Case reported in AIR 1971 Supreme Court 2486. In this connection, he bas also referred to the decision of the Supreme Court in Madhu Limaye's Case reported in AIR 1971 Supreme Court 2486. He has further argued that though the stale or remote incidents cannot be taken into consideration in drawing up a proceeding under s. 107 but even after the case came back to the learned Executive Magistrate the petitioner filed two petitions making fresh allegations against the opposite parties that the learned Executive Magistrate took the said subsequent allegations into consideration in drawing up a fresh proceeding and that in such a case the learned Executive Magistrate is competent to take the subsequent event into consideration. In support of his view he has referred to a decision of the Supreme Court in the case of Ramnarain Singh vs. State of Bihar reported in AIR 1972 Supreme Court 2225. He has further argued that the learned Executive Magistrate was the sole authority to decide whether he would draw up a proceeding or not, that his discretion in this regard was absolute and unqualified, that on materials as placed before him he drew up the proceeding by his order dated 15.1.91 and that said proceeding can not be challenged. 6. First let me consider whether the entire proceeding based on the petition under s. 107 filed on 20.989 was quashed or not by order dated 1.11.90, passed by Mr. Justice A.K. Nayak in Criminal Revision No. 762 of 1990 or whether by such order only' the proceeding so far as it related to issuance of notice under s. 111 was quashed and let me also consider whether the learned Executive Magistrate was justified in drawing up a fresh proceeding in the same case i.e. Case no. M-940 of 1989 and on the same partition under s. 107 filed on 209.89 in terms of the liberty given to the learned Magistrate as per order dated 1.11.90, in the said Criminal Revision. On 20.9. 89 Mrityunjoy Sen filed a petition under s. 107 of the Code of Criminal Procedure against the present petitioner. M-940 of 1989 and on the same partition under s. 107 filed on 209.89 in terms of the liberty given to the learned Magistrate as per order dated 1.11.90, in the said Criminal Revision. On 20.9. 89 Mrityunjoy Sen filed a petition under s. 107 of the Code of Criminal Procedure against the present petitioner. The learned Executive Magistrate called for a report from the O.C. concerned and on consideration of the said petition and the police report, the learned Executive Magistrate by his order dated 11.12.89 drew up a proceeding under s. 107 and issued notice to the opposite parties to show cause why they could not execute a bond for keeping peace and good behaviour. Being aggrieved the present petitioners challenged the proceeding on two grounds, namely that the notice was not in conformity with the provision of s. 111 and that the learned Magistrate was not satisfied that there was sufficient ground for drawing up a proceeding. Mr. Justice A. K. Nayak accepted both the grounds allowed the revisional application and made the rule absolute. By the same order he quashed the proceeding with the observation that the learned Magistrate was at liberty to draw up' a fresh proceeding. This order, as it stands, shows that the proceeding in its entirety has been quashed and that no part of the proceeding had been retained. It is true that the learned Judge did not consider the Case on merits, nor did direct that the fresh proceeding was to be started on fresh petition and on fresh materials. But at the same time it is also very much clear that the learned Judge did not send back the case to the learned Magistrate to up draw a fresh proceeding and to issue fresh notice on the basis Of the petition and materials already on record. In absence of any such direction it must be held that the learned Judge quashed the proceeding in its entirety without retaining any part of the proceeding and the liberty as given must be construed as a liberty to draw up a fresh proceeding on a fresh petition to be filed by the petitioner. In absence of any such direction it must be held that the learned Judge quashed the proceeding in its entirety without retaining any part of the proceeding and the liberty as given must be construed as a liberty to draw up a fresh proceeding on a fresh petition to be filed by the petitioner. In this connection my attention has been drawn to the decision of a Division Bench of this Court in the case of Smt. Tulsibala Rakshit v. N.N. Ghosal (supra) but the facts of the reported case are distinguishable from the facts of the case at band. Due to procedural defect as mentioned in the judgement, the entire proceeding after cognizance was set aside and the petition under s. 107 was directed to be dealt with in accordance with law as indicated in the judgment. Though the entire proceeding after cognizance in the reported case was set aside but the Court directed that petition under s.107 should be dealt with according to law unless the Magistrate considered that there was, about a year after the petition, no likelihood of breach of peace in which case the Magistrate would refuse to issue notice to show cause or to take any further step on the petition. But there is no such specific direction given by the learned Judge in the instant case while disposing of the Criminal Revision No. 762 of 1990. As there was no direction upon the learned Executive Magistrate to dispose of the petition under s. 107 of the Code of Criminal Procedure in accordance with law, it must be held that the learned Judge quashed the entire proceeding without retaining any part of the proceeding to be dealt with by the learned Executive Magistrate. As the proceeding in its entirety was quashed and as there was no direction upon the learned Magistrate to deal with the petition under s. 107 in accordance' with law, the liberty as given to the learned Magistrate to draw up a fresh proceeding must be construed as a liberty to draw up a fresh proceeding on a fresh petition and fresh materials. That being so, the leaned Executive Magistrate was not all justified in drawing up a fresh proceeding on a petition under s. 107 filed on 20.9.89 and consideration of the incidents as alleged therein. In doing so he appears to have committed an error. 7. That being so, the leaned Executive Magistrate was not all justified in drawing up a fresh proceeding on a petition under s. 107 filed on 20.9.89 and consideration of the incidents as alleged therein. In doing so he appears to have committed an error. 7. For arguments sake let it be assumed that the learned Executive Magistrate was competent to draw up a fresh proceeding on the petition under s. 107 filed on 20.9.89 and on the set of facts-alleged therein. Then let me consider whether he was at all justified in drawing up a proceeding under s. 107 as he did in the instant case by his order dated 15.1.91 with regard to the purpose, scope and procedure of the proceeding under s. 107 both sides have referred to and relied upon the decision of the Supreme Court in Madhu Limaye's Case (supra) The question as to constitutional validity of the provision of s, 107 and other provision of the Code of Criminal Procedure came up for consideration before 1he Supreme Court and it was held that provisions of s. 107 were 'constitutionally valid. Since both sides have referred to and relied upon this decision, Jet me now consider the' relevant portion of the judgment which will be helpful in arriving at a decision in this case. The Supreme Court has given the gist of s. 107 in paragraph 33 of the judgment. It runs as follow : "It enables certain specified class as of Magistrate to make an order calling upon a person to show came why he should not be ordered to executs a bond, with or without sureties for keeping the peace for such periods not exceeding one year as the Magistrate thinks fit to fix. The condition of taking action is that there the Magistrate is informed and he is of opinion that there is sufficient ground for proceeding that a person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occassion a breach of the peace or disturb the public tranquility." 8. It has also been held that this section is aimed at person who causes a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of public tranquillity and that this is an instance of preventive justice which the Courts are intended to administer and .that for this purpose the Magistrates are vested with a large judicial discretionary powers for preservation of public peace and order. It has also been 'held that the gist of the Chapter VIII of the Code of Criminal Procedure in which the s. 107 is embodied is the prevention of crimes and disturbal1ce of public tranquillity and breaches of the peace, that there is no need to prove overt acts and that the acting being preventive is not based any overt act but on the potential danger to be averted. In delivering a separate judgment Bhargava J. observed as follows : "It has to be noticed that, where proceedings are contemplated under s. 107, the Magistrate takes action when he is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity, only after forming an opinion that there is sufficient ground for proceeding against him. The Magistrate cannot start the proceedings merely because of the information received by him. Pursuant to the information the Magistrate was to form his opinion that there is sufficient ground for proceeding. This opinion can be formed on the basis of information supplied to him if he finds that information is given in sufficient detail and is reliable enough to justifying his acting on its basis. In case where the information given is not of such nature, it will be the duty of the Magistrate to hold further enquiry and satisfy himself that it is a fit case where action should be taken because sufficient ground exists. There may be cases where the information may be received from the police in which case the' Magistrate may examine all police papers and satisfy himself that there do exist sufficient ground for him to take the proceeding as requested by the police. There may be cases where the proceeding may be instituted at the instance of a private complainant who may be apprehending the breach of the peace by the people complained against. There may be cases where the proceeding may be instituted at the instance of a private complainant who may be apprehending the breach of the peace by the people complained against. In such cases, the Magistrate is bound either to hold some enquiry himself by examining the witnesses on oath or to have an enquiry made through the- police so that he may be able to form a correct opinion as to existence of sufficient grounds for proceeding. It is after the Magistrate has taken these steps, he can proceed to make the order under s. 112. When making that order, he has to record in it in writing the substance of information received which necessarily means the part of the information which was the basis of his opinion that sufficient grounds exist for initiating the proceeding. It is at this preliminary stage that the Magistrate is thus required to ensure that a prima facie case does exist for the purpose of, initiating proceedings against the person who is to be called upon to furnish security for keeping the peace." 9. Next let me consider whether the learned Executive Magistrate was justified in drawing up a proceeding as he did by his order dated 15.l.9l. Mr. Sekhar Kumar Basu, learned advocate for the petitioners bas argued that the incidents as alleged in the petition under s. 107 are of trivial nature and should not be any ground for drawing up a proceeding under s. 107. In support of his view he has referred to the decision of the Bombay High Court in the case of Jayant D. Shah vs. Stale of Maharastra (supra). Mr. Sengupta, learned advocate appearing for the opposite parties. on the other hand, argued that the said decision of the learned Judge of the Bombay High Court sitting singly is not correct inasmuch as it failed to take note of the main purpose of s. 107 which is essentially preventive in nature and not punitive and can be invoked to avert the potential danger to the society as has been held by the Supreme Court in Madhu Limaye's case (supra). I have gone through the decision. Most of them incidents complained of related to distribution or sharing of water from the common water taps by the tenants living in the same building. I have gone through the decision. Most of them incidents complained of related to distribution or sharing of water from the common water taps by the tenants living in the same building. It has been held therein that facts complained of are of trivial in nature for which powers under s. 107 should not be exercised and that such powers are to be exercised in the cases of serious nature. There is nothing in the decision to show that the learned Judge failed to take note of the main purpose of the s. 107 which is essentially preventive in nature and could be invoked to avert potential danger to the society. On the other hand it appears that on consideration of the provision of s. 107 to s. 110 the learned Judge was of the view that the powers vested in an Executive Magistrate under this section have to be exercised only in cases of serious nature and not in cases involved in trivial quarrels and certainly not to be used as a vehicle of private vendetta. In the case at hand, allegation as made in the petition under s. 107 are of trivial nature. Mrityunjoy Sen the present opposite party is the owner of premises in question and the present petitioners are the lessee under him in respect of a flat on the western side of the building. Both the parties are living in the same building and there are other tenants too. It has been alleged that the opposite party constantly threatened Mrityunjoy Sen for non-supply of sufficient water and committed nuisance by throwing water on the stair case and on the common passage, that on 1.9.89 he forcibly attempted to take water from the tap of the ground floor meant for the shop-keepers of the ground floor and also tried to use the latrine of the ground floor, that on 6.9.89 the opposite parties i.e. present petitioners also abused said Mrityunjoy Sen for non-supply of water and that he used to bring some undesirable person to his flat and to make noise at the top of their voice. All these allegations or the alleged incidents on the basis of which the proceeding under s. 107 was sought to be drawn up are undoubtedly of trivial nature. All these allegations or the alleged incidents on the basis of which the proceeding under s. 107 was sought to be drawn up are undoubtedly of trivial nature. In view of the aforesaid decision I am of the opinion that the learned Executive Magistrate should not have drawn up proceeding under s. 107 on the basis of the allegations or alleged incidents which are of trivial nature. 10. In the instant case the learned Executive Magistrate appears to have drawn up a proceeding in January 1991 on the basis of the acts alleged to have been committed by the present petitioner' in September 1989. It has been argued by the learned Advocate for the petitioners that there ought to' be close proximity between the acts of the opposite parties and the order of the Magistrate and that the acts committed by the opposite parties in September 1989 cannot be any valid ground for passing orders or drawing up a proceeding under s. 107 in January 1991. In support of his argument he has referred to a decision of the Full Bench of Kerala High Court in the case of Maidu v. State of Kerala (supra). It has been held therein that the past conduct and acts would serve as basic material in justification of apprehension of similar conduct and that it would, however, be subjected to proviso that in point of time and relevant the past acts are not remote. Though the past acts and conducts of the opposite parties may be taken into consideration by the Magistrate in drawing up a proceeding under s. 107 but such acts or conducts must not be remote. In that view of the matter the acts as committed by the opposite parties i.e. the present petitioners in' September 1989 cannot and should not be taken into consideration in drawing up a proceeding in January 1991. The learned Advocate for the present opposite parties has conceded that stale or remote incidents cannot be taken into consideration in drawing up a proceeding but he has argued that even after the case came back to the Magistrate the petitioner i.e. the present opposite party filed the petitions making fresh allegations against the opposite party and the learned Magistrate took them into consideration in drawing up a fresh proceeding. It is true that after the proceedings have been quashed by a learned Judge of this Court in Criminal Revision no. 762 of 1990 on 1.11.90 the petitioner Mrityunjoy Sen filed two petitions on 1.12.90. One petition was for drawing up a fresh proceeding as directed by this Court. In another petition it was alleged that even after filing of the petition under s. 107 the opposite parties had been creating all sorts of troubles inside the premises no. 118D AJC. Bose Road committing nuisance, breach of peace and disturbing public tranquillity. Any specific incidents or any specific allegations were not made in the application. Certain G.D. Entry nos. and' the complaints filed by him have been referred to therein' but contents of the said G.D. Entries or the complaints were not disclosed or stated in the said petition. Thus it is clear that the said petition contained only a general allegation and did not mention any specific incidents for taking into consideration in the matter of drawing up a proceeding. In the circumstances it roust be held that no fresh materials' or fresh incidents were placed or mentioned before the learned Executive Magistrate when he 'drew up the impugned proceeding. He thus, appears to have drawn up the impugned proceeding on the basis of the acts or incidents as mentioned in the petition under s. 107 filed on 20.9.89. As those were the remote acts or incidents the learned Executive Magistrate should not have taken into consideration those remote acts and incidents while drawing up a proceeding in January 1991. So the proceeding drawn up on the basis of such remote acts is bad in law and cannot be allowed to stand. 11. Mr. Sekhar Kumar Basu, the learned advocate for the petitioner has further argued that before drawing up a proceeding under s. 107 the learned Executive Magistrate must form an opinion, that there is sufficient ground for proceeding and that in the instant case where the learned Executive Magistrate, drew up the impugned proceeding on 15.1.91, he did not form any such opinion and thus acted contrary to the specific provision of law. In support of his view he bas referred to the decision of the Supreme Court in Madhu Limaye's Case (supra). Me. In support of his view he bas referred to the decision of the Supreme Court in Madhu Limaye's Case (supra). Me. Sengupta, the learned advocate for the opposite party, on the other hand, has argued that as the responsibility to maintain peace in his division is cast upon the Magistrate, his discretion in this regard is absolute and unqualified and that he is the sole authority to decide whether or not he will draw up a proceeding and that such exercise of discretion should not be interfered with. In Support of his view he bas referred to a Division Bench decision of Andhra Pradesh High Court in the case of Cheekireddy Subbareddy vs. State of Andhra Pradesh (supra). The said Division Bench had held that sine qua non for instituting proceeding is that the Magistrate must be convinced from the information about the likehood of breach of peace, that the responsibility is cast upon the Magistrate to maintain peace in his division and that his discretion in this regard is, therefore, absolute and unqualified. It is true that the discretion in this regard has been vested in the Magistrate to decide whether or not he will draw up a proceeding on the basis of information placed before him but there should be reasonable exercise of discretion and not an arbitrary exercise of it. In exercise of such discretion, he must act in accordance with the provision of law relevant for the purpose. Section 107 requires before drawing up a proceeding the Executive Magistrate must be of the opinion that there is sufficient ground for proceeding. In Madhu Limoye's Case, the Supreme Court has reiterated that under s. 107 the Magistrate takes action when he is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity only after forming an opinion that there is sufficient ground for proceeding against him. It has further been held that the Magistrate cannot start the proceeding merely because of the information received by him. But in the instant case while drawing up the impugned proceeding on 15.1.91 the learned Executive Magistrate did not record or state that he was of the opinion that there was sufficient ground for proceeding. As such drawing up of impugned proceeding as made by the learned Executive Magistrate on 15.1 92 is not in accordance with law and must therefore, be quashed. As such drawing up of impugned proceeding as made by the learned Executive Magistrate on 15.1 92 is not in accordance with law and must therefore, be quashed. 12. Thus, it is clear that though the learned Judge of this Court by his order dated 1.11.90. passed in Criminal Revision no. 762 of 1990 grunted a liberty to the learned Magistrate to draw up a fresh proceeding but he did so after setting aside the proceeding in its entirety without retaining any part of it or without directing the Magistrate to proceed with the same case from the stage at which the impugned proceeding had been drawn up. So the learned Executive Magistrate committed an error in drawing up a fresh proceeding in pursuance of the said liberty in the same 'case i.e. Case no. M-940 of 1989 on the same set of facts as stated in the petition under s. 107 filed on 20.9.89. He drew up the impugned proceeding on the basis of the allegation of trivial nature upon which no such proceeding under s. 107 should have been drawn. It has also been found above that he drew up the impugned proceeding on some remote incidents or facts and it has also been seen that he drew up the impugned proceeding without recording that he was of the opinion that there was sufficient ground for proceeding. For all these reasons drawing up of the impugned proceeding appears to be a gross abuse of the process of law. This Court in exercise of its inherent power must quash the impugned proceeding. So, the revisional application is allowed. The rule is made absolute. The impugned order dated 21.3.91 and the entire proceeding being Case no. M-940 of 1989 pending in the 11th Court of Executive and Metropolitan Magistrate, Calcutta are hereby quashed. 13. Let the case record together with the copy of this order be sent to the learned Executive and Metropolitan Magistrate as expeditiously as possible. Revisional application allowed. proceeding quashed.