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2006 DIGILAW 404 (CAL)

Kamala Kanta Halder v. State

2006-07-07

PRABUDDHA SANKAR BANERJEE

body2006
Judgment : The Court: 1. This revisional application as per provision of section 482 of the Criminal Procedure Code is directed against the order dated 23.6.2005 passed by Sri S. K. Khamari, the learned Additional District & Sessions Judge, First Track Court(Second) at Diamond Harbour in Criminal Motion No.203 of 2004. The said criminal motion was at the instance of the present petitioners and was directed against order passed by the learned Executive Magistrate, Diamond Harbour on 12.4.2004 in connection with M. F. Case No.439 of 2003. 2. The said case namely M.F. No.439 of 2003 was filed by one Probodh Chandra Naskar against the present petitioners and that was a proceeding under section 133 of the Criminal Procedure Code. 3. The learned Executive Magistrate initially directed the Officer-in Charge, Mathurapore Police Station to ask the opposite parties to stop further construction and also to maintain status quo. 4. Subsequently the Prodhan was directed to intimate the learned Executive Magistrate regarding width of the passage (pathway) which was subject matter of that proceeding. 5. The police submitted report which went against the first party of that proceeding. 6. Subsequently, the Prodhan Lakshmi Narayan Utter Gram Panchayat submitted the report and on the basis of the said report, the learned Executive Magistrate directed to demolish the unauthorized structure or part of the unauthroised structure after due notice upon the opposite parties of that case. 7. Being aggrieved by the said order of the learned Executive Magistrate, the present petitioners moved before the learned Sessions Judge by preferring one revision under sections 397, 399 of the Criminal Procedure Code which was numbered as Criminal Motion No.203 of 2004. 8. The said case was subsequently transferred to the Court of the learned First Track Court at Diamond Harbour and by the impugned order, the motion was dismissed and order passed by the learned Executive Magistrate was affirmed. 9. During hearing Sri Satyajit Mondal, learned Advocate appearing on behalf of the petitioners challenged the order passed by the learned Executive Magistrate as well as the learned Additional Sessions Judge on the following grounds:_ (I) That the learned Executive Magistrate without taking evidence passed the impugned order thereby the interest of the opposite party has been seriously hampered. 9. During hearing Sri Satyajit Mondal, learned Advocate appearing on behalf of the petitioners challenged the order passed by the learned Executive Magistrate as well as the learned Additional Sessions Judge on the following grounds:_ (I) That the learned Executive Magistrate without taking evidence passed the impugned order thereby the interest of the opposite party has been seriously hampered. (II) That the learned Executive Magistrate did not consider that there was conflicting reports regarding alleged illegal construction of the structure by the opposite parties over the pathway. (III) That the learned Executive Magistrate without giving proper opportunity to the opposite parties passed the order which is illegal. 10. At the same time the order passed by the learned Additional District & Sessions Judge, Diamond Harbour was challenged on the ground that the said order was passed by the learned Sessions Judge without applying his judicial mind though the materials on record were in favour of the second party. The following cases were referred at the time of hearing : (i) 1995 Cr. LJ 2935 (SC), Ganesh Narayan Hedge vs. S. Bangarappa & Ors. (ii) 2001 Cr. LJ 3117 (Rajasthan High Court) Banshi Lal vs. State of Rajasthan. (iii) 2001 Cr. LJ 920 (Madhya Pradesh High Court), Ramfool Mina vs. Jagrati. (iv) 2002 Cr. LJ 2731 (Andhra Pradesh High Court) C E I Consultancy & Anr. vs. Modi World Infotech & Anr. 11. The learned Lawyer appearing for the first party who is opposite party No.2 in this case however, supported the order passed by the learned Sessions Judge. At the same time the maintainability of the present case has been seriously challenged. It was argued on behalf of the opposite party No.2 i.e. private respondent that the present application under section 482 of the Criminal Procedure Code is not maintainable in view of interpretation of the statute by the Honble Courts including the Apex Court. 12. He drew the attention of the Court to the case of Ganesh Narayan Hedge vs. S. Bangarappa & Ors., reported in 1995 Cr. LJ 2935 (SC). 12. He drew the attention of the Court to the case of Ganesh Narayan Hedge vs. S. Bangarappa & Ors., reported in 1995 Cr. LJ 2935 (SC). Special attention of the Court was drawn to paragraph 12 which runs as follows:_ "While it is true that availing of the remedy of the revision to the Sessions Judge under section 399 does not bar a person from invoking the power of the High Court under section 482, it is equally true that the High Court should not act as a Second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a manner it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges." 13. On perusal of the said case it is seen that High Court should not act as a Second Revisional Court under the garb of exercising inherent powers. 14. In other words, the Honble Supreme Court came to the conclusion that the High Court should not interfere by invoking inherent power provided under section 482 if it is seen that the Sessions Court has duly discussed everything in its judgment while disposing a revisional application which was filed under sections 397, 399 of the Criminal Procedure Code. 15. In Banshi Lal vs. State of Rajasthan, reported in 2001 Cr. LJ 3117, practically the same view was taken by the Honble High Court. In the said case the Honble High Court came to the conclusion that by invoking the provision of section 482 of the Criminal Procedure Code the High Court should not act as Second Revisional Court. 16. In Ramfool Mina vs. Jagrati, reported in 2001 Cr. LJ page 920, the Honble High Court also supported the view as reported in 2001 Cr. LJ 3117. 17. In C E I Consultancy & Anr. vs. Modi World Infotech & Anr., the Andhra Pradesh High Court opined that where the party availed remedy of revision and lost, he cannot take the advantage of section 482 of the Criminal Procedure Code by asking the Honble Court to invoke its inherent power. LJ 3117. 17. In C E I Consultancy & Anr. vs. Modi World Infotech & Anr., the Andhra Pradesh High Court opined that where the party availed remedy of revision and lost, he cannot take the advantage of section 482 of the Criminal Procedure Code by asking the Honble Court to invoke its inherent power. 18. Sri Satyajit Mondal, learned Counsel appearing for the petitioners contended that in the case between Jitedra Kumar Jain vs. State of Delhi & Ors., reported in 1999 SCC (Cri) 77, the Honble Supreme Court however, opined that the High Court can invoke its inherent power even if a revision was preferred before the Court of Sessions Judge. 19. In the said case, the Apex Court directed the High Court to reconsider the case but at the same time opined that a second revision petition does not lie before the High Court when one is dismissed by the Court of Sessions. 20. In this case we are to consider whether the present petitioners got opportunity to place his case before the First Court of Revision and whether the petitioners availed of the same. 21. On perusal of the impugned judgment passed by the learned Sessions Judge, it is crystal clear that he discussed all the pleas which were raised by the petitioners at the time of argument. 22. It is also clear from the said impugned order that on the basis of materials on record including the report of the Prodhan and the Surveyor, he confirmed the order of the learned Executive Magistrate. 23. I am of clear opinion that the learned Sessions Judge after applying his judicial mind dismissed the said revision and if this Court invokes the power under section 482 of the Criminal Procedure Code at this stage, it will tantamount to miscarriage of justice. 24. In view of the said position, I do not find any reason to entertain the instant application and the instant revisional application is devoid of any merit. Accordingly, the motion is dismissed. However, there will be no order as to costs. 25. Interim stay, if granted, is hereby vacated. 26. Plain copy of this judgment be sent to the learned Sessions Judge and Executive Magistrate at Diamond Harbour. Motion dismissed.