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Gauhati High Court · body

1991 DIGILAW 57 (GAU)

Bhabesh Chandra Das v. Bibekananda Nath and Another

1991-04-02

S.N.PHUKAN

body1991
This is a petition under section 401 read with section 482 CrPC and is directed against the order of the learned Sessions Judge, Karnrup at Guwahati dated 29.10.90 parsed in Case No. CM No. 10 (K-4)90. 2. Brief facts are as follows : The present petition has been filed who was the 1st party in Case No. 294m/90 under section 145 CrPC before the learned Executive Magistrate Guwahati. On 31.7.90 learned Executive Magistrate passed the following orders : "Received case on transfer. Perused petition along with the police report. Whereas it appears to me that there is every apprehension to breach o peace between the parties mentioned, regarding a plot of land schedule of which is given below. Proceeding U/s 145 CrPC are drawn up. Both parties are directed !o file written statements on the fact of their actual possession on or before the date fixed. With a view to prevent any immediate breach of peace between the parties, I do pass order U/s 146 CrPC for attachment of the disputed land, prohibiting entry of either party into the disputed land, till disposa1 of the case or until further order. O/C, Geetanagar PS will please cause execution of this order and report compliance within 18.8.90." Thereafter another order was pissed on 22.9.90 by which the attachment order was vacated. The said order runs as follows : "Both parties present. Seen the petition filed by the 2nd party dated 21.8.90. Also perused the police report. Heard both the parties. It is seen that 1st party is a resident of Narikalbasti, Guwahati 24 under Geetanagar PS and the disputed land is in Japorigog village under Beltola mouza. Moreover the disputed land in question is ceiling surplus land and the 2nd party has been constructing a Assam type house in the D/L and it was almost completed at the time of the initiation of the proceedings, and was in possession of the D/L at the time of the initiation of the proceedings. Hence the attachment order U/s 146(1) of the CrPC is hereby vacated. However proceeding U/s145 CrPC will continue Schedule of the land is as before. O/C, Geetanagar PS for taking necessary action and report compliance. Hence the attachment order U/s 146(1) of the CrPC is hereby vacated. However proceeding U/s145 CrPC will continue Schedule of the land is as before. O/C, Geetanagar PS for taking necessary action and report compliance. Next date fixed for W/S. Fixed date 25.10.90." Immediately on that date the 1st party filed a petition stating that the above order vacating the attachment was passed without hearing the learned counsel for the 1st party. The said petition was filed by the learned counsel for the 1st party. It may be stated that in the above order dated 22.9.9^ the learned Executive Magistrate, recorded that both the parties were present. 3. Subsequently, on the basis of the above petition filed by the 1st party, the learned Magistrate passed an order on 19.1090. The said order runs as follows : ''The case record was taken up today on a petition filed by the I,st party. The same shall be heard on the date fixed . By the time, O/C is Hereby Directed to see such that no further construction be made on disputed land and status quo be maintained by both the parties on the disputed land till disposal of the case. Fix 25.10.90." Being aggrieved, the and party approached the learned Sessions Judge and by the impugned order, the above order of the learned Executive Magistrate dated 19.10.90 was stayed. The learned Sessions Judge also observed that by the above order, the learned Magistrate stopped construction over the D/L and directed maintenance of status quo and as the land was not under attachment the Magistrate could not have issued such an order of status quo. Being aggrieved, the present petition has been filed by the 1st party. 4. Mr, Phukan, learned counsel for the present petitioner viz the 1st party has urged that the impugned order of the learned Sessions Judge is bad in law, inasmuch as the order dated 19.10.90 passed by the learned Executive Magistrate was an interlocutory order. According to learned counsel under section 397 CrPC a petition is not maintainable against the interlocutory order. The basis of the learned counsel for the above submi­ssion is on the fact that the learned Executive Magistrate while passing the above order dated 19.10.90, recorded that the matter will be heard on the next date 5. I am unable to accent the contention of Mr. The basis of the learned counsel for the above submi­ssion is on the fact that the learned Executive Magistrate while passing the above order dated 19.10.90, recorded that the matter will be heard on the next date 5. I am unable to accent the contention of Mr. Phukan, in as much as by this order the leaned Executive Magistrate passed an order stopping the construction and maintaining status quo and in my opinion, this is a final order. Merely because, it was ordered that the matter will be heard on the next date it cannot be treated as an interlocutory order. 6. That apart, if the petitioner was aggrieved on the ground stated by Mr Phukan the proper course would have been to approach the learned Sessions Judge to consider these points urged before this Court and the impugned order being an ex parte order could be stayed even after the stage of admission. 7. As the present petition has been filed under section 482 CrPC i.e. for invoking inherent jurisdiction, I am in opinion that this Court has jurisdiction to cancell all the orders passed in the present proceeding and to pa s appropriate orders. I say so more particularly, as this being a procee­ding under section 145 CrPC, if the 1st party is directed to approach the learned Sessions Judge it will unnecessarily dragg on the matter. This I have stated as the learned counsel for the opposite party has drawn my attention to the counter-affidavit wherein it has been specifically stated that the 2nd party is residing in the part of the house on the suit land. 8. Mr. Phukan has urged that the order dated 19.10.90 passed by the learned Executive Magistrate cannot be faulted as this is an order passed in review and the Court has got such power for ends of justice. In this connection learned counsel has drawn my attention to Grindlays Bank Ltd. vs. Central Govt. Industrial Tribunal & others, AIR 1981 SC 606 . In this connection learned counsel has drawn my attention to Grindlays Bank Ltd. vs. Central Govt. Industrial Tribunal & others, AIR 1981 SC 606 . In para 13 of the said judgment the Apex Court held that the expression 'review' is usad in two distinct senses, namely (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. 9. The above decision was rendered in respect of an ex parte order passed by the Industrial Tribunal. In para 6 of the judgment the Apex Court held that Tribunal had the power to pass the impugned order if it thought fit in the interest of justice, although there is no ^revision in the law. 10. In my opinion, this decision is not relevant for our present purpose as the powers of the Court in case arising out of section 145 and section 146 CrPC is well defined and all such cases has to be derided within the four corners of the above two sections. The question of exercising power of review by a criminal Court while deciding matters under the above two sections cannot arise 11. Section 146 CrPC is absolutely clear and unambiguous. It empowers the Court to attach any property under the circumstances staled in the said section and for the case in hand the case of emergency is relevant. In other words, the learned Magistrate must be satisfied before passing any attachment order that there was an emergency. Having revoke the attach­ment order by a speaking order passed on 22.9.90, the learned Executive Magistrate has no power to review the matter and as such the order passed on 19.10.90 is bad in law and accordingly it is quashed. 12. It is however made clear that this order shall not deprive the learned Court to exercise power under section 146 CrPC if it is proved before the Court that there is a case of emergency. 12. It is however made clear that this order shall not deprive the learned Court to exercise power under section 146 CrPC if it is proved before the Court that there is a case of emergency. For this purpose, the 1st party may approach the Court again and before passing the final order regarding attachment, the learned Court shall hear both the parties and if it is satisfied that there is emergency, order of attachment can be passed. In exercising power under section 146 CrPC the Executive Magistrate, has no power to direct maintenance of status quo or to stop construction on the disputed land. 13. Before parting with the record I would like to reiterate the views expressed by this Court on a number of occasions regarding drawing up of proceeding under section 45 CrPC some of the decisions are Maqbul Hussafn vs. Syadur Rahman, (1986) 2 GLR 167, Mangturam Sanganeria vs. Shri Kartik Phowmick, (1986) 2 GLR 177 and Haripada Kar vs. Pijush Bhowa), (1987) 2 GLR 198. 14. I the result, I hold that the learned Sessions Judge rightly stayed the order in question passed by the Executive Magistrate. As I have quashed the said order it is not necessary for the learned Sessions Judge to proceed further with the proceeding registered as Case No. CM No. 10 (K-4) of 1990 and for the purpose of the said Court the said proceeding may be treated as disposed of. A copy of this order may be sent to the learned Sessions Judge, Guwahati, I, however, direct that parties shall maintain status quo as per order of this Court dated 1.2.91 for a period of 10 days from today to enable the 1st party to approach the learned Executive Magistrate. At the end of the above 10 days, this stay order shall stand vacated. With the above direction and observation the petition is disposed of.