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Gauhati High Court · body

2014 DIGILAW 113 (GAU)

Labanya Baruah v. Debendra Nath Dutta and Ors.

2014-01-28

A.K.GOSWAMI

body2014
1. By this application under section 397 read with section 401 of the Code of Criminal Procedure, 1973 ('the Code'), the petitioner puts to challenge the order dated 17.2.2007 passed by the learned Executive Magistrate, Golaghat in connection with Case No. 122/2006. 2. Case No. 122/2006 was registered on the basis of an application dated 10.11.2006 filed by the petitioner before the Executive Magistrate, Golaghat wherein she had stated that she had inherited land in periodic patta No. 233 (as would be revealed from the original application filed, though, in the application annexed as Annexure 1, it has been wrongly stated that she had inherited land under Dag No. 233) and the opposite parties had forcefully taken away the land and are occupying the same. It is further stated that opposite parties had obtained mutation in Dag Nos. 823, 813, 1058 and 1393 of periodic patta No. 233 of village Maliagaon. 3. The learned Magistrate drew up a proceeding under section 145 of the Code and issued notice to both the parties. Subsequently, on appearance of the parties, the learned Magistrate passed the order dated 17.2.2007 dropping the case, which is the subject-matter of challenge in this petition. 4. On the prayer of the learned counsel for the parties, this matter has been taken up for disposal at the time of admission. I have heard Ms. B. Sinha, learned counsel for the petitioner and Ms. P. Bhattacharya, learned counsel for the opposite parties. I have also perused the records of the learned trial court. 5. Ms. Sinha submits that the learned trial court committed an illegality in dropping the proceeding holding the application to be time-barred although, no period of limitation is prescribed for fling an application under section 145 of the Code. 6. Ms. P. Bhattacharya, on the other hand, had submitted that having regard to the provision of section 145 of the Code, when the application itself disclosed that the applicant was not in possession of more than 1.8 months prior to the date of filing of the application, no relief could have been obtained by the applicant and, therefore, the learned Magistrate was justified in dropping the proceeding. It is also pointed out by her that immediately after dropping of the proceeding on 17.2.2007, in respect of the very same parties and plot of land, another application was filed under section 145 of the Code by the petitioner showing an alleged date of occurrence on 18.2.2007 and the learned Additional District Magistrate, Golaghat had again drawn up a proceeding under section 145 of the Code in Case No. 6/2007. She further contends that without filing any application for condonation of delay, this revision application was filed more than 2 years 6 months from the date of passing of the impugned order. 7. Ms. Sinha does not dispute that with regard to same plot of land and in between the same parties, Case No. 6/2007 was filed by the petitioner. 8. This revision application was filed on 4.11.2009. Admittedly, no application for condonation of delay in preferring this revision application was filed. There is no mention in this application also as to why the order dated 17.2.2007 was assailed after more than 2 years 6 months. Ms. Sinha also could not offer any explanation as to what prompted the petitioner to file this revision application challenging the dropping of the proceeding by the learned Magistrate when subsequently another proceeding was instituted by the petitioner and a proceeding was drawn up. On these grounds, the petition merits dismissal. 9. Even on merits, no case is made out by the petitioner for interference. Under section 145 of the Code, the duty of the learned Magistrate is to, if possible, decide whether any or which of the parties was, at the date of the order made by him under section 145(1), in possession of the land in dispute and maintain the possession, which means actual physical possession, without reference to the merits or the claims of any of the parties to a right to possess the subject-matter of dispute. 10. The order of the learned Magistrate dated 17.2.2007 is quoted herein below for better appreciation : "CR put up today. Both parties present and submits Hazira along with their learned counsel. Hearing was taken from both parties. Learned counsel of 2nd party put forward the point that the case cannot proceed further as it was already time barred. 10. The order of the learned Magistrate dated 17.2.2007 is quoted herein below for better appreciation : "CR put up today. Both parties present and submits Hazira along with their learned counsel. Hearing was taken from both parties. Learned counsel of 2nd party put forward the point that the case cannot proceed further as it was already time barred. The main point of argument was that the incident of dispossession as stated by the 1st party took place on 26.7.2005, 27.7.2005, 3.8.2005 but the complaint was lodged by the 1st party on 10.11.2006. Hence, I am satisfied to drop the case as there is no merit and ingredients under section 145, Cr.PC." 11. Proviso to of section 145(4) of the Code provides that if it appears to the Magistrate that any party has been forcefully and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under section 145(1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under section 145(1) of the Code. 12. The application filed by the petitioner under section 145 of the Code shows the date of occurrence on 26.7.2005,29.7.2005 and 3.8.2005 and the application was filed on 10.11.2006 after more than 1 year 3 months of the date of dispossession. No declaration of possession could have been granted in favour of the petitioner in such circumstances. The learned Magistrate is obliged to decide the dispute relating to actual possession but he is not embark upon a journey to decide as to who has the right to possess. In the admitted factual position when the application under section 145 of the Code was filed after more than 1 year 3 months from dispossession, though proceeding was drawn up earlier, the learned Magistrate could cancel the order which is what the learned Magistrate has done by dropping the proceeding. The expression 'time-barred' as finding place in the order has to be read in the light of section 145(4) of the Code. 13. Before parting with the records, this court considers it necessary, though reiterated time and again by this court, that before taking up proceeding under section 145 of the Code, the Magistrate must be careful, cautious, circumspect. The expression 'time-barred' as finding place in the order has to be read in the light of section 145(4) of the Code. 13. Before parting with the records, this court considers it necessary, though reiterated time and again by this court, that before taking up proceeding under section 145 of the Code, the Magistrate must be careful, cautious, circumspect. A proceeding under section 145 of the Code should not be rendered a mere ritual on any pretext or pretence of apprehension of breach of peace in respect of the possession of an immovable property. 14. In view of the aforesaid discussion, I find no merit in this application and accordingly, the same is dismissed. No costs. 15. Send back LCR.