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2009 DIGILAW 208 (CAL)

Subrata Kundu v. Kamala Ranjan Das

2009-03-06

PARTHA SAKHA DATTA

body2009
Judgment :- P.S. DATTA, J. (1) The order dated 12.11.08 passed by the learned Executive Magistrate, 1st Court, Howrah in MP case no 973/08 is under challenge at the instance of the present petitioners who were the opposite parties before the learned Magistrate in the said proceeding under section 144(2) of the Cr.P.C. which was initiated by the present opposite party no. 1 herein. (2) I have heard Mr. Sekhar Basu, learned Senior Advocate appearing for the petitioner and Mr. Ramchandra Guchait, learned Advocate appearing for the opposite party. By the order impugned the learned Magistrate directed service of notice upon the present petitioner so as to show cause as to why a proceeding u/s 144 Cr.p.c. would not be drawn up against them. Allegation was that the present petitioners in collusion with a road contractor were amalgamating the opposite partys land with the common passage. The date was fixed on 26th November 2008 for furnishing show cause. On 26th November 2008 the Magistrate was busy. The next date fixed was 2nd January 2009. Now on 19th August 2008 the opposite party herein filed a put-up petition praying for early hearing and the learned Magistrate directed the opposite party to inform the present petitioner. Then the date was fixed on 2nd September 2008 and on that day no hearing did take place. Hearing was adjourned to 23rd October 2008. Then the hearing stood further adjourned to 12.11.2008. On 12.11.2008 the impugned order was passed. (3) Mr. Basu submits that the order dated 12.11.2008 could not have been passed if in compliance with the order of the learned Magistrate the opposite party herein would have informed the present petitioners of his petition praying for early hearing of the case and the order of the learned Magistrate fixing 23rd October 2008 for hearing of the petition under section 144 Cr.p.c. Mr. Guchait, learned Advocate appearing for the opposite parties submits that the learned Magistrate did not commit any illegality in passing the impugned order. (4) Upon hearing the learned Advocate for the parities I do not find that any illegality was at all committed by the learned Magistrate by the order impugned dated 12.11.2008. The order dated 12.11.2008 was not at all a prejudicial order affecting any interest of the present petitioners. No proceeding u/s 144 Cr.p.c. was drawn up. (4) Upon hearing the learned Advocate for the parities I do not find that any illegality was at all committed by the learned Magistrate by the order impugned dated 12.11.2008. The order dated 12.11.2008 was not at all a prejudicial order affecting any interest of the present petitioners. No proceeding u/s 144 Cr.p.c. was drawn up. Learned Magistrate simply directed issuance of show cause notice upon the present petitioner. As the present petitioners were not informed of the date of hearing which were fixed on 23.10.2008, the learned Magistrate did not take the hearing on 23.10.2008. Because of the alleged fault on the part of the opposite party herein the magisterial order dated 12.11.2008 cannot be faulted. It is a quite good order asking for show cause by the present petitioners. (5) I do not find any point in interfering with the order complained of. While I dismiss the application, I direct the learned Magistrate to dispose of the case in presence of both the parties as expeditiously as possible.