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2010 DIGILAW 1048 (CAL)

Govind Raj v. Venkatachalam

2010-08-23

S.K.MUKHERJEE

body2010
JUDGMENT 1. THIS is a revisional application under section 482 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated July 30, 2010 passed by the learned Additional Sessions Judge, Andaman and Nicobar Islands, in Criminal Revision No. 1 of 2010/13 of 2009, affirming the order dated August 11, 2009 passed by the Sub-divisional Magistrate, South Andaman, in case Nos. 850-851 of 2008 under section 107 of the Code of Criminal Procedure. 2. IT is an unfortunate litigation between the father-in-law and the son-in-law. While the petitioner is the son-in-law and the opposite party No. 1 is his father-in-law. The father-in-law invited son-in-law to stay in a house allegedly constructed by him. The son-in-law was residing in the accommodation provided by the father-in-law with the members of his family. There were disputes between the father-in-law and the son-in-law over fetching of drinking water. The father-in-law initiated a proceeding under Sections 107, 116(3) and 150 of the Code of Criminal Procedure. 3. THE Sub-divisional Magistrate, by the order dated August 11, 2009, inter alia, directed to the son-in-law to vacate the house and to hand over the keys to the complainant. 4. THE son-in-law preferred a revisional application before the learned Sessions Judge, which was registered as Criminal Revision Case No. 13 of 2009. Eventually, the revisonal application was transferred to the Court of the learned Additional Sessions Judge and was re-numbered as Criminal Revision Case No. 1 of 2010. The learned Additional Sessions Judge dismissed the revisional application holding, inter alia, that the son-in-law was simply a guest in the premises-in-question and, therefore, he had no legal right to seek protection of his possession. 5. THE executive Magistrate under Section 107 of the Code of Criminal Procedure can only require security for keeping the peace. Such power is to be exercised only in a case of a serious nature and must not be used as vehicle for private vendetta. 6. I am of the opinion that a civil dispute has been stretched and brought to the criminal Court unnecessarily. If the father-in-law wants the son-in-law and the members of his family to vacate, he is to file a suit for recovery of possession. He is not, entitled to recover possession without following the procedure established by law. 6. I am of the opinion that a civil dispute has been stretched and brought to the criminal Court unnecessarily. If the father-in-law wants the son-in-law and the members of his family to vacate, he is to file a suit for recovery of possession. He is not, entitled to recover possession without following the procedure established by law. I am of the opinion that the learned Magistrate had no jurisdiction to pass, in substance, an order of eviction in the proceeding, as foresaid, initiated before him. The revisional Court has also, committed an error of jurisdiction in affirming the order of the learned Magistrate. 7. THE prohibition of second revision does not completely bar High Court's power to entertain a revision petition under Section 482 of the Code of Criminal Procedure. Such power to entertain an application under the said Section 482 is capable of being invoked in appropriate cases. The High Court is to see that justice is done in accordance with the recognized rules of criminal jurisdiction. 8. THE order impugned, if allowed to stand, will cause grave miscarriage of justice. The proceeding initiated by the opposite party No. 1 in the revision petition is an abuse of the process of the Court. Therefore, the revisional application filed under section 482 of the Code of Criminal Procedure is allowed. The order passed by the learned Magistrate and the learned Additional Sessions Judge are set aside. The proceeding initiated under sections 107,116(3) and 150 of Code of Criminal Procedure is dismissed. 9. HOWEVER, this order shall not prevent the father-in-law to initiate proceeding against the son-in-law for recovery of possession of the said house in accordance with law. I make no order as to costs.