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2011 DIGILAW 676 (CAL)

Md. Mahmud v. STATE OF WEST BENGAL

2011-05-17

KALIDAS MUKHERJEE

body2011
JUDGMENT KALIDAS MUKHERJEE, J. 1. THIS is an application under Section 397, 401 read with Section 482 of the Code of Criminal Procedure against the 23rd Order dated December 2010 passed by the learned S.D.E.M(s) Berhampore, Murshidabad, in Case No. 4170 of 2010 under Section 144 (2) of the Code of Criminal Procedure. 2. IT is submitted by the learned Counsel for the petitioner that the petitioner herein is the owner of the property and the entry in the R.S.R.O.R. stands in the name of Sk Shamsul Huda, the father of the petitioner. It is further submitted that the petitioner Mahmud earlier filed an application under Section 144 (2) of the Code of Criminal Procedure against the Opposite Party NO. 2, Kawsar Ali SK and others. It is submitted that vide Order dated 29.11.2010 the learned Magistrate passed an Order for the maintenance of status quo in the disputed land for 30 days. 3. IT is further contended that after the order was passed on the application filed by the petitioner herein, the Opposite Party No. 2 Kawsar Ali Sk filed an application under Section 144 (2) of the Code of Criminal Procedure against the petitioner herein and vide Order dated 23.12.2010 the learned Magistrate passed an order directing the O.C., Beldanga P.S. to see that the constructional work of the boundary wall of the petitioner was not disturbed by the Opposite Party No. 2. 4. IT is contended by the learned Counsel for the petitioner that the order passed by the learned Magistrate subsequently on the application filed by the Opposite Party herein was contradictory to the earlier order dated 29.11.2010 passed on the application filed by the petitioner herein against the Opposite Party No. 2. It is further contended that the subsequent order dated 23.12.2010 was passed within the period of 30 days from 29.11.2010 during which there was an order for the maintenance of status quo. It is submitted that there was suppression of material facts in the application filed by OP No. 2 herein. 5. THE learned Counsel appearing for the State also submits that the subsequent order passed by the learned Magistrate is contradictory to the earlier one. 6. It is submitted that there was suppression of material facts in the application filed by OP No. 2 herein. 5. THE learned Counsel appearing for the State also submits that the subsequent order passed by the learned Magistrate is contradictory to the earlier one. 6. IT further appears that the learned Magistrate while passing the order dated 23.12.2010 did not record the material facts complained of which led to the passing of the order that the constructional work of the boundary wall of the petitioner was not to be disturbed by the Opposite Party No. 2. In absence of the material facts being recorded in the order and the absence of recording of the satisfaction of the learned Magistrate for passing such specific direction, it is clear that the said order dated 23.12.10 is contrary to the provision contained in Section 144 (2), Cr.P.C. Mentioning of the material particulars and the recording of the satisfaction of the learned Magistrate are condition precedent for passing the Order under Section 144 (2), Cr.P.C. 7. IN the impugned Order those essential ingredients of the Section are conspicuously absent and under such circumstances I am constrained to hold that the Order dated 23.12.2010 passed by the learned Magistrate suffers from illegality which resulted in miscarriage of justice. 8. THE impugned Order dated 23.12.2010 passed in Case No. 4170 of 2010 is, therefore, set aside. The application thus stands disposed of. 9. URGENT Photostat certified copy, if applied for, be handed over to the parties as early as possible.