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2006 DIGILAW 738 (CAL)

MAKIMUDDIN v. STATE OF WEST BENGAL

2006-11-27

ASHIM KUMAR ROY

body2006
Before Ashim Kumar Roy, J. ( 1 ) IN this application under Section 482 of the Code of Criminal Procedure the petitioners challenge an order dated June 16, 2005 passed by the learned sessions Judge, Malda in connection with criminal revision No. 10 of 2005 where the learned Session Judge dismissing the said criminal revision upheld the order dated February 11, 2005 passed by the learned Sub-Divisional executive Magistrate, Chanchal, in connection with a proceeding under Section 145 of the Code of Criminal Procedure relating to the case No. 43p of 2004. ( 2 ) MR. Arup Kumar Chatterjee, learned Advocate appearing on behalf of the petitioners challenged the impugned order passed by the learned Session judge, Malda on the ground that the learned Judge failed to appreciate the provisions of Section 146 of the Code of Criminal Procedure. According to his submission no Court can, after terminating the appointment of receiver direct hand over of the possession of the disputed land to either of the parties without the right, title and interest being decided by a competent civil Court. ( 3 ) ON the other hand, Mr. Madhusudan Sur learned Advocate appearing on behalf of the opposite parties vehemently opposed the submissions of Mr. Chatterjee and invited this Court's attention to the relevant provision of Sections 144 and 146 of the Code of Criminal Procedure. ( 4 ) MR. Sobhendu Sekhar Roy, learned Advocate appearing on behalf of the State also supported the submission of Mr. Sur the contention raised by mr. Sur and submitted that the order passed by the learned Magistrate and affirmed by the learned Judge has not suffered from any irregularity or infirmity and that no interference is called for by this Hon'ble Court. ( 5 ) HEARD, the learned Advocates of the respective parties, perused the order passed by the learned Magistrate as well as by the learned Session judge in criminal revision and the materials on record, considered. ( 5 ) HEARD, the learned Advocates of the respective parties, perused the order passed by the learned Magistrate as well as by the learned Session judge in criminal revision and the materials on record, considered. ( 6 ) FROM a plain reading of the provision of Section 146 of the Code of criminal Procedure, it would be abundantly clear that the learned Magistrate may attach the subject of dispute and appoint receiver in respect thereof under two circumstances, i) Firstly, at the very outset, if after making the order Section 145 (1) of the Code, the learned Magistrate the case to be one of emergency; ii) Secondly, when at the conclusion the learned Magistrate comes to decision that none of the parties was then in possession, as is referred to in Section 145 or if he is unable to satisfy himself as to which of them was then is such possession of the subject of dispute until a competent court determines the rights of the parties thereto with regard to the person entitled to the possession thereof. ( 7 ) GOING through, the order dated May 24,2004 passed by the learned magistrate, in connection with the impugned proceedings I found that the learned Magistrate appointed the receiver as after passing the initial order under Section 145 (1) of the Code, the learned Magistrate considered the case to be one of emergency order and thus to avoid any untoward incident and with the consent of the parties and not because the learned Magistrate either held that none of the parties were in possession or he was unable to satisfy himself as to whom of them was then in possession. It is true at the conclusion, in connection with a proceeding under Section 145 of the Code, a receiver is appointed by a Court as because the Court came to a decision that none of the parties was in possession or was unable to satisfy himself as to which of them was in possession, until the decision of a competent civil Court. The criminal court cannot discharge the receiver already appointed and direct the possession be given to a particular party. The criminal court cannot discharge the receiver already appointed and direct the possession be given to a particular party. ( 8 ) IN the instant case, since the receiver was appointed, at the initial stage, only because the situation was one of emergent in nature and as such, the learned Magistrate when finally concluded after going through the police report and the depositions of witnesses and other materials on record that the opposite party No. 2 was in possession, the learned Magistrate can be said to have acted going beyond the power conferred upon him under the provision of the Section 145 of Code of Criminal Procedure in directing the receiver so appointed to hand over the possession of the disputed property whom he found to be in possession in respect thereof as is referred to in section 145 of the code. ( 9 ) I, therefore find no infirmity or illegality in the order passed by the learned Magistrate, subsequently affirmed by the Court of Sessions. Moreover, admittedly, this is a second revision and it is the settled position of law that as far as the second revision is concerned the bar contained in section 397 (3)does not attract only when the impugned order amounts to an abuse of process of Court or has resulted in failure of justice. The learned Advocate of the petitioner has not been able to satisfy this Court that this is one of such case where inherent jurisdiction of this Court is required to be invoked either to prevent abuse of process of Court or the miscarriage of justice. This is not either a case where interference of this Court is necessary for ends of justice. ( 10 ) THIS application has no merit and stands dismissed and the interim order, if any, are vacated.