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1994 DIGILAW 372 (CAL)

Bistu Pada Khara v. State of West Bengal

1994-12-09

SATYABRATA SINHA

body1994
Judgment 1. The petitioner, in this application has, inter alia, prayed for issuance of a Writ of or in the nature of Mandamus directing the respondents to prevent criminal trespass, unlawful assembly and other illegal and unlawful activities on the part of the private respondents. It is stated that the petitioner is the owner of the property. The private respondents, however, are disturbing their possession. The petitioner on an earlier occasion had filed an application under Section 144(2) of the Code of Criminal Procedure, and sought for police help. As despite an order passed under sub-Section (2) of Section 144 of the Code of Criminal Procedure, no police help was given to the petitioner, he approached this Court in its constitutional writ jurisdiction. U. C. Banerjee, J. by an order dated 4.6.92 directed as follows :- "The police authorities are directed to act in terms of the order of the learned Executive Magistrate, Basirhat dated 23.4.92 in M.P. Case No. 445 of 1992. In the event the Officer in-Charge, Sandeshkhali Police Station deems it expedient to post a police picket he shall post a police picket at the cost of the petitioner. The writ petition is thus disposed of". 2. It is stated that despite the said order, this year again the private respondents intend to create disturbance whereupon the petitioner had intimated the said fact to the concerned authorities. Thereafter, the petitioner again filed an application under Section 144(2) of the Code of Criminal Procedure before the S. D. M (E), Basirhat, North 24-Parganas. On the body of the said application itself, the learned Magistrate passed the following order:- "Seen the petition u/s. 144 Cr. P.C. Call for a report from B.L. & L.R.O Sandeshkhali-I. In the meantime O/C Sandeshkhali P.S. will see that no breach of peace takes place over the suit ghery and also maintain peace. To 3.1.95". 3. The petitioner thereafter, through his learned Advocate demanded justice from the Circle Inspector of Police and the Officer-in-Charge, Sandeshkhali Police Station, in terms of the letter dated 25.11.94, which is contained in Annexure 'H' to the writ application. The grievance of the petitioner is that despite the same, the concerned respondents namely, the respondent Nos. 6 and 7 have not posted any police picket nor given any police protection to the petitioner. 4. The grievance of the petitioner is that despite the same, the concerned respondents namely, the respondent Nos. 6 and 7 have not posted any police picket nor given any police protection to the petitioner. 4. Learned counsel appearing on behalf of the petitioner submits that keeping in view the facts and circumstances of this case, this Court may pass a similar order passed by U. C. Banerjee, J. as referred to hereinbefore. 5. It is admitted that there exists a private dispute with regard to possession of the properties in question by and between the petitioner and the private respondents. Such a private dispute cannot be the subject matter of a proceeding under Article 226 of the Constitution of India. If there exists an apprehension of breach of the peace, the remedy of the petitioner is to take recourse to law. In fact, as noticed hereinbefore, the petitioner bas already filed an application for initiating a proceeding under Section 144 of the Code of Criminal Procedure, whereupon an order has been passed by the Sub-Divisional Magistrate purported to be in exercise of his jurisdiction under sub Section (2) of Section 144 of the Code of Criminal Procedure. The said order, ex facie, neither conforms to the provision of sub-Section (2) of Section 144 of the Code of Criminal Procedure, nor could have been passed in such a manner. This Court, times without number, has deprecated the practice of the Executive Magistrate to pass a judicial order on the body of the application filed by the applicants praying for initiation of a proceeding under Section 144 of the Code of Criminal Procedure. Sub-Section (2) of Section 144 of the said Code stipulates application of judicial mind on the part of the Executive Magistrates. The Executive Magistrates are also required to pass a speaking order clearly stating that an emergency exists so as to enable him to exercise the extraordinary jurisdiction to pass an ex parte order behind the back of the opposite parties to the said proceeding. The impugned order, unfortunately, has been mechanically passed by the Sub-Divisional Magistrate. The said order is, therefore, clearly illegal and vitiated in law. 6. This Court, therefore, cannot issue any Writ in favour of the petitioner which would be in aid of such illegal order. The impugned order, unfortunately, has been mechanically passed by the Sub-Divisional Magistrate. The said order is, therefore, clearly illegal and vitiated in law. 6. This Court, therefore, cannot issue any Writ in favour of the petitioner which would be in aid of such illegal order. Moreover, the Supreme Court of India in the case reported in (1) AIR 1993 SC 1223 has clearly held that the High Courts should not exercise its jurisdiction in such matters. 7. For the reasons aforementioned, it is not possible for me to follow the order of this Court dated 4 6.92, as contained in Annexure 'G' to the writ application. The said order also does not contain any reason, nor does it create any binding precedent. 8. For the reasons aforementioned, there is no merit in this application. However, I may observe that it would be open to the petitioner to approach the Sub-Divisional Magistrate, or any other authority or court to pass an appropriate order for ventilating his grievance. If such an application is filed, the learned Magistrate shall consider the same and pass an order forthwith. 9. The application is dismissed with the aforementioned observations. Liberty is given to the petitioner to communicate this order.