Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 704 (CAL)

Niranjan Chakraborty v. State of West Bengal

2002-11-28

KALYAN JYATI SENGUPTA

body2002
JUDGMENT Petitioner being aggrieved by inaction of police authority in carrying out order dated 14th June, 1999 read with 9th January, 2001 passed in Misc. case No. 30 of 1996 by the learned Executive Magistrate at Baruipur in case of Niranjan Chakraborty v. Gouranga Banik. Short fact of the case is that petitioner filed an application under Section 147 of the Criminal Procedure Code against Balai Mondal & Ors. In this case it was alleged by petitioner that opposite party caused obstruction on the pathway of petitioner. In the aforesaid case the learned Executive Magistrate passed an order upon hearing petitioner and considering the evidence, on 14th June, 1999, and directed that obstruction on the said pathway to be removed. The order was informed to the officer-in-charge of the concerned police station namely Baruipur. As the order was not carried out subsequently an application was made by the petitioner on 9th January, 2001 and on that date a further order was passed by the learned Executive Magistrate directing the officer-in-charge of Baruipur Police Station to comply with the order dated 14th June, 1999. However despite communication of the aforesaid two orders it was not carried out by the officer-in-charge of the police station. After this application had been filed the police authority as assured by Mr. Pulak Chandra Mondal learned Advocate appearing for the State, carried out the said two orders and report of compliance was also filed subsequently. On 5th June, 2001 private-respondents appeared in this matter and took direction for filing affidavits. In the affidavit-in-opposition question of maintainability of the writ petition has been taken contending that this Court has no jurisdiction to determine the dispute of civil nature in the writ jurisdiction by reason of the fact that the issues and/or question regarding right, title and possession of the pathway are pending for determination before the learned Civil Judge, Junior Division, Baruipur in a civil suit being No. T.S.17 of 1996. This Court cannot be converted into executing Court for an order of the learned Magistrate. During pendency of the said suit the petitioner who is the defendant in the aforesaid title suit is purported to have filed the aforesaid application under Section 147(3) of the Cr.P.C. to establish claim against the private-respondent though the suit was dismissed for default once, however, it was restored on 5th March, 2001. During pendency of the said suit the petitioner who is the defendant in the aforesaid title suit is purported to have filed the aforesaid application under Section 147(3) of the Cr.P.C. to establish claim against the private-respondent though the suit was dismissed for default once, however, it was restored on 5th March, 2001. In the affidavit-in-reply factum of restoration of the suit has been denied and disputed. It is stated that two title suits being Nos. 170 of 1996 and 171 of 1996 filed by the private-respondents were dismissed on 18th February, 1998 and 8th June, 1998 respectively for not taking any step by the respondents. The proceedings under Section 147 of the Cr. P. C. was initiated long before restoration of the title suit. 2. The learned lawyer of the writ petitioner submits that in the present writ petition it is not the question of deciding the title of the parties in relation to the property nor the disputes involved herein are of civil nature. It is sheer case of police inaction as the two order's passed by the learned Executive Magistrate, have not been carried out by the officer-in-charge of concerned Police Station by removing obstruction. It is the duty of the police authority under Section 23 of the Police Act 1861 to carry out the order passed lawfully_ by the authority concerned. In support of his contention he has relied on two decision, one of which is of Supreme Court ( AIR 1968 Cal 407 ) and another of this Court ( AIR 1981 SC 2198 ). 3. Mr. Malay Chakraborty learned Senior Counsel appearing with Mr. Debashis Purkait on behalf of the private-respondent Nos. 7, 8 and 9 submits that the disputes involved in the writ petition are of civil nature and for which the civil suits have been filed. This Court cannot have any jurisdiction to act as an executing Court of the orders of the learned Magistrate. He also submits that the learned Magistrate has no jurisdiction to pass order for removal when the Civil Suits are pending. He further contended that the Court of criminal jurisdiction cannot arrogate itself to the position of Civil Court. This Court cannot have any jurisdiction to act as an executing Court of the orders of the learned Magistrate. He also submits that the learned Magistrate has no jurisdiction to pass order for removal when the Civil Suits are pending. He further contended that the Court of criminal jurisdiction cannot arrogate itself to the position of Civil Court. Even assuming the aforesaid two orders are lawful and valid then the petitioners have got alternative remedy in enforcing the aforesaid two orders by initiating proceedings under Section 188 of I.P.C. In support of his contention he relied on the decisions reported in AIR 1993 SC 1225 , AIR 1996 SC 1517 , 1999(2) CHN 555 , 2000(1) CHN 291, 1996(2) CLT 418. 4. Having heard the respective contentions of the learned Counsels the question of maintainability of the writ petition is to be addressed first. It is submitted that the Court has no jurisdiction to decide the question of civil dispute in the matter. Propositions in law propounded by the learned Counsel cannot be disputed. Therefore, authorities in support thereof can also not be disputed, question of applicability of the aforesaid decisions and propositions of law on the facts and circumstances of the present one, needs to be taken first. 5. The grievance of the writ petitioner in this case is police being inactive in respect of orders passed by the learned Magistrate. This Court has not been called upon to decide as to whether the petitioner is entitled to get an order of removal for obstruction or not or for that matter whether the petitioner is a lawful owner/occupier of the property in question or not. The competent Court has already passed two orders deciding the petitioner's entitlement to have an order for removal. Admittedly these two orders are not challenged before the Court or before any other competent forum. The aforesaid two orders are still valid and subsisting. Two orders without any ambiguity whatsoever commanded the police authority to remove obstruction. Until the present writ petition was filed the police authority for the reasons best known to them did not activate themselves. These positions are admitted by the parties. I am unable to accept the argument of Mr. Chakraborty that this Court has to decide the title in this case and thus has no jurisdiction. Mr. Until the present writ petition was filed the police authority for the reasons best known to them did not activate themselves. These positions are admitted by the parties. I am unable to accept the argument of Mr. Chakraborty that this Court has to decide the title in this case and thus has no jurisdiction. Mr. A. Rahamani is substantially right in saying that it is a case of the inaction of the police and police can be commanded by a writ of mandamus to carry out the order of the Court as they are duty bound under Section 23 of the Police Act 1861. Section 23 of the said Act, therefore, is relevant and reproduced hereunder: “23. Duties of police-officer. – It shall be the duty of every police-officer promptly to obey and execute all orders and warrants lawfully issued to him by an competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisance; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists; and it shall lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinking-shop, gaming-house or other place of resort of loose and disorderly characters.:” 6. Therefore, this preliminary point raised by Mr. Chakraborty fails. As far as the question of alternative remedy is concerned it is settled position of law that such remedy is not a bar to entertain writ petition, however, it is writ Court concerned whether it would entertain the writ petition in exercise of jurisdiction under Article 226 on a given facts and circumstances of a case or not. As a matter of prudence and rule the writ Court does not exercise this jurisdiction on a disputed question of fact. As I have already observed that in this case there is no involvement of disputed question of fact so aforesaid theory of alternative remedy is not applicable. 7. Mr. Chakraborty then contends the proceedings under Section 188 of I.P.C. would be appropriate and alternative remedy. As I have already observed that in this case there is no involvement of disputed question of fact so aforesaid theory of alternative remedy is not applicable. 7. Mr. Chakraborty then contends the proceedings under Section 188 of I.P.C. would be appropriate and alternative remedy. Without any hesitation I record my disagreement with this argument as the proceedings under the aforesaid section culminates in punishment of an offender and the aforesaid proceedings does ensure compliance of the order, passed by the lawful authority and disobeyed by the offender. However, proceedings initiated under the provision of Contempt of Court Act some times ensure implementation and\or execution of the order by virtue of judicial pronouncements. Therefore, I hold that the proceedings under Section 188 of the Indian Penal Code is not an alternative remedy and it is a separate and independent proceedings. The judgment cited by Mr. Chakraborty are of no help at all and the same are distinguishable in the fact and circumstances of this case. As to why the aforesaid decisions are not applicable I will deal with little later. It appears from the records that when the two orders were passed by the learned Executive Magistrate the civil suit had stood dismissed on 8th June, 1998 and the same was not restored until 5th March, 2001. Therefore, it cannot be said that the civil suit was pending when the aforesaid orders of learned Magistrate was passed. I am unable to accept the argument of Mr. Chakraborty further that the aforesaid two orders are illegal and nullity, as the writ Court cannot enquire into the question and for this purpose one who is aggrieved with these two orders can approach before the appropriate forum exercising criminal jurisdiction not before this Court. Therefore, I am not observing or commenting on this aspect and the same is left for adjudication by the appropriate forum. Now I shall be dealing with the cases cited at the Bar as follows :– The decision cited by Mr. Chakraborty reported in AIR 1993 SC 1225 , does not in any manner help in this case. In the Supreme Court decision, factually it is found that dispute between two private parties were sought to be resolved by the High Court in exercise of jurisdiction under Article 226 of the Constitution of India. Chakraborty reported in AIR 1993 SC 1225 , does not in any manner help in this case. In the Supreme Court decision, factually it is found that dispute between two private parties were sought to be resolved by the High Court in exercise of jurisdiction under Article 226 of the Constitution of India. But this order of High Court was not allowed to be sustained by Apex Court and in that context it was held amongst others : “The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes for which remedies, under the general law, civil or criminal, are available. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant, the jurisdiction is special and extraordinary and should not be exercised casually or lightly.......” 8. In the case on hand the competent Court has already decided the dispute under Section 147 of the Criminal Procedure Code under which the Court is competent to decide such dispute. Such decision still remained unchallenged and despite specific mandate being given by the competent Court the Police did not carry out the same. In the Supreme Court decision it appears to me the mind of the Apex Court was that the High Court should not be allowed to usurp the jurisdiction of competent Court, in exercise of jurisdiction under Article 226 of the Constitution of India. 9. The decision of the Supreme Court reported in AIR 1996 SC 1517 as has been referred to by Mr. Chakraborty is also misplaced here. In that case the learned Single Judge of this Court in exercise of Jurisdiction under Article 226 of the Constitution of India had passed an order, keeping the proceedings under Section 144 of the Criminal Procedure Code pending before the appropriate Magistrate. By that order the' tenants were virtually dispossessed., Giving this fact the Apex Court observed that the learned Single Judge ought to have passed such order and that too ex parte, as the writ Court has no jurisdiction to pass this kind of order under Section 144 of the Criminal Procedure Code. This decision of Apex Court has not laid down the law that the writ Court cannot pass any order compelling the Police authority to carry out the lawful order passed by the competent Court or authority. 10. Four decisions of this Court cited by Mr. This decision of Apex Court has not laid down the law that the writ Court cannot pass any order compelling the Police authority to carry out the lawful order passed by the competent Court or authority. 10. Four decisions of this Court cited by Mr. Chakraborty, namely 1996 (II) CLT 418; 1999 (II) CHN 555 ; 2000 (I) CHN 291 and 1989 Cr. L.R. (Cal) 86 are also not applicable in this case. Those cases do not lay down the law that orders passed by the competent authority or Court cannot be asked to be carried out by the Policy authority under Section 23 of the Police Act 1861. Those cases did not consider the implication of Section 23 of the Police Act, 1861. As such those decisions are not only factually distinguishable but also on law. Moreover those decisions are dealt with under Sections 144 and 145 of the Criminal Procedure Code. Here the order was passed lawfully by the learned Magistrate under Section 147 of the Criminal Procedure Code. 11. The learned Lawyer for the writ petitioner has pressed the law laid down in the Supreme Court decision reported in AIR 1981 SC 2198 , to support the point of maintainability of writ petition. This decision of Supreme Court was rendered on the fact that order passed under Section 144 of the Criminal Procedure Code were challenged by a writ petition under Article 226 of the Constitution of India not by the regular appropriate proceedings under the provision of Criminal Procedure Code 1973. On this fact it was held by the Apex Court that order passed under Section 144 of the Criminal Procedure Code can also be impugned by petition under Articles 32 and 226 of the Constitution of India if the right of the person guaranteed under Part III of the Constitution of India is infringed by the impugned order passed under Article 226 of the Constitution of India. 12. The learned Lawyer for the petitioner has also cited the Joy Engineering case reported in AIR 1968 Cal page 407. It appears the Special Bench of this Court has held that the Writ Court can pass an order directing the Police authority to discharge their duty under Section 23 of the Police Act, 1861. 12. The learned Lawyer for the petitioner has also cited the Joy Engineering case reported in AIR 1968 Cal page 407. It appears the Special Bench of this Court has held that the Writ Court can pass an order directing the Police authority to discharge their duty under Section 23 of the Police Act, 1861. It is true the writ Court cannot execute the order of the subordinate Court but it is the duty of this Court under Article 226 of the Constitution of India to see that public bodies and authorities and servants must act in accordance with law and discharge their statutory obligation. I have no doubt in my mind that Section 23 of the said Act cast duty upon the Police authority to perform and this duty is a public duty which has got impact in the society as the police authorities are the custodian of the law and order in a constitutionally run Government and the democratic polity always look forward the smooth and effective action being taken by the Police authority for ensuring Rule of Law. Therefore, it is a clear case of inaction of the public servant. So this Court has jurisdiction to command by issuance of appropriate writ to perform its duty. I find that the order has already been carried out by the Police authority even before this Court could pass any order. Suit has been restored and the parties obviously will abide by the adjudication to be done by the Civil Court and the order of the learned Magistrate obviously will not have any impact on the question of right, title and interest of the parties in the civil suit. If any damage being suffered by any of the parties one can very well approach before the Civil Court for appropriate remedy. Thus no further need be passed.