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Calcutta High Court · body

2009 DIGILAW 768 (CAL)

Swapan Kumar Chakraborty v. STATE OF WEST BENGAL

2009-09-23

ASHIM KUMAR ROY

body2009
Judgment :- (1). The subject matter of challenge in this criminal revisional application is an order passed in connection with a proceeding under Section 144 of the Code of Criminal Procedure. The order impugned is quoted below : "3.7.09 -Perused the petition and considered. I/C Airport P.S. to see that status quo is maintained in respect of construction undertaken by the O.P. Chairman North D/Dum Municipality to furnish an enquiry report. Issue notice for hearing with relevant documents. I/C to submit a report and maintain peace." (2). Mr. Soumo Priyo Chowdhury, learned Advocate appearing on behalf of the petitioner submitted before this Court that the order impugned is not in accordance with law as no proceeding was drawn up nor any satisfaction about apprehension of breach of peace and necessity of passing of a restraint order to prevent breach of peace was recorded. He further submitted earlier over the self-same dispute arising out of the self-same plot, the opposite parties have filed two other proceedings under Section 144 of the Code of Criminal Procedure being M.P. Case No. 1720 of 2009 and 1348 of 2009 and both the cases were dismissed after taking into consideration the police report and holding that the plot in question is situated within a boundary and the petitioner herein is the lawful owner thereof and there is no apprehension of breach of peace. He further submitted over the self-same dispute a Civil Suit has been instituted by the opposite party No. 2, but her prayer for injunction has been rejected, thus Mr. Chowdhury prays for quashment of the impugned proceeding. (3). Mr. Tapan Dutta Gupta, the learned Advocate, appearing on behalf of the opposite party No. 2 submitted that the order impugned does not deserve to be interfered with as the learned Magistrate called for a police report and it would be appropriate to allow the learned Court below to decide the matter after receipt of the police report. (4). Mr. Swapan Kumar Mallick in his usual fairness submitted that the order impugned cannot be supported as the status quo order has been passed without following the legal principle and he further submitted repetitive order under Section 144 of the Code of Criminal Procedure at the instance of the self-same party and over the self-same dispute is riot permissible in law. (5). (5). I have given my anxious and thoughtful consideration to the rival submission of the parties. Perused the impugned order as well as the other materials on record. So far as the impugned order is concerned, I find that the order of maintaining status quo as regards to the construction works thereby restraining the petitioner from making any further construction has been passed by the learned Court below without satisfying the requirement of law. Before passing such order, the learned Magistrate has not either set out the material facts of the case nor has recorded his satisfaction that there is an apprehension of breach of peace over the dispute in question and passing of a restraint order is required to prevent a breach of peace and public tranquility. (6). Admittedly, during the span of a year, at least, twice over the self-same dispute proceedings under Section 144 of the Code of Criminal Procedure were instituted by the opposite party No. 2 and same were finally dismissed after receipt of enquiry reports. Moreover, a civil suit is pending between the self-same parties over the self-same dispute. (7). In the case of Acharya Jagdishwaranand Vadhuta v. Commissioner of Police, Calcutta, reported in (1983)4 SCC 522 , the Apex Court has deprecated passing of repetitive order in exercise of power under Section 144 of the Code of Criminal Procedure and in another decision reported in (1985)1 SCC 427 , in the case of Ram Sumer Puri Mahant v. State of U. P. and Ors., the Apex Court held when a civil litigation is pending for the self-same property wherein the question of possession is involved and the parties have approached the Civil Court, there is no justification for initiating a criminal proceeding under Section 145 of the Criminal Procedure Code. (8). For the reasons stated above, I am of the opinion that the impugned proceeding is wholly an abuse of process of Court and cannot be permitted to continue any further. Accordingly, the impugned proceeding stands quashed. This criminal revision stands allowed. (9). In view of the disposal of main criminal revisional application, the application for extension of interim order being CRAN No. 2080 of 2009 has become infructuous and accordingly stands disposed of.