Badal Gomes vs Martin Arinda and Another

N.K. Bhattacharjee, J.—This revision under Article 227 of the Constitution of India is directed against the order dated 14-1-92 passed by the learned Sub divisional Magistrate, Ranaghat, Nadia, in M.P. Case No. 25 of 1992 in Misc. Case No. 6(111) of 1992, arising upon an application u/s 144 of the Code of Criminal Procedure at the instance of one Maretina Arina, first party in that petition against the second party Badal Gomes alleging, inter alia, that the second party member by depositing brick and sand upon the passage located on the 20 decimals of land in plot no. 670 caused inconvenience to the first party. The police report was called for and thereafter a proceeding u/s 144 of the Code of Criminal Procedure was drawn up and certain orders were passed by the learned Magistrate. Even thereafter it was alleged that the second party members were trying to raise construction on that land which was a vacant one and the learned Magistrate by his order dated 14th January, 1992 drew up a proceeding u/s 145 of the Code of Criminal Procedure upon the police report showing that there was apprehension of breach of the peace and forbade both parties from entering upon the land and he also by that order drew up a proceeding u/s 145 Cr. P.C. and in exercise of his power u/s 146(1) of that Code appointed a Receiver. That order has not been challenged in revision before the first revisional Court. The first party again made a petition before the learned Magistrate alleging that the second party members were trying to construct on the suit land in spite of the order of restraint passed by the order dated 14-1 -92. Accordingly, the learned Magistrate directed sending of copy of the petition to the Pradhan, Barasat, G. P., the Receiver appointed by the learned Magistrate, with the direction upon the Receiver to submit a report immediately. The order dated 12-6-95 was the subject-matter of revision before the Court of the learned Additional Sessions Judge, 1st Court, Krishnagore, Nadia, in Criminal Motion No. 7, 1995. The revision was filed sometime in January, 1995. The learned Additional Sessions Judge by his order dated 12-6-95 in that revision dismissed the revisional application of Badal Gomes, the member of the second party, on two grounds, the first ground he found that the learned Magistrate had jurisdiction to draw up a proceeding u/s 145 Cr. P.C. and in the second ground he found that the revision had been moved against an interlocutory order. In this revision under Article 227 of the Constitution of India the said Badal Gomes challenged that revisional order and also the order of the learned Magistrate dated 14-1 -92 passed in M. P. Case No. 25 of 1992, Misc. Case No. 6(111) of 1992.

Mr. Subroto Bose, learned Advocate for the petitioner, contended only one point that both the civil suit and criminal proceeding u/s 145 of the Code of Criminal Procedure cannot go together. In support of his contention he relied upon the decision of the Apex Court in the case of Ram Sumer Puri Mahant Vs. State of U.P. and Others,

Mr. Sunirmal Nag, learned Advocate for the opposite party No. 1 submitted that in the facts and circumstances of this case as the report of the Receiver went against the second party, the second party moved the revision and that the case of Ram Sumer Puri Mahant (supra) has no bearing on this case.

Under the Criminal Rules and Orders there is no bar to move a revisional application challenging orders more than one but that must be of the same Court; but in the instant case, two orders have been challenged under this revision. One is the order of the learned Magistrate and another is the order of the learned Sessions Judge. That'' is not permissible under the law. Moreover, the order of the learned Magistrate dated 14-1 -92 was not challenged before the Court of the learned Additional Sessions Judge in Criminal Motion No. 7 of 1995. For the first time that order has been challenged before this Court. In that the present revisional application is not maintainable. Be that as it may, so far as the merit of the case is concerned, as has already been pointed out that Mr. Bose argued that a parallel proceeding, one in a civil suit and another proceeding u/s 145 Cr. P.C. cannot go together, I have pointed out that reliance was placed on the case of Ram Sumer Puri Mahant (supra). Before dealing with that case, a further fact need to be placed on record. Challenging the order of the learned Magistrate, dated 29-12-94, Sri Badal Gomes filed the revision sometime in the month of January, 1995 and during the pendency of that motion civil suit had been filed by the second party Badal Gomes and in that title suit being Title Suit No. 106 of 1995 the plaintiff obtained an ex-parte ad-interim order of injunction dated 7th April, 1995. So, the suit had been filed after drawing up of the proceeding u/s 145 Cr. P.C. In the case of Ram Sumer Puri Mahant (supra), the Supreme Court has held that when a civil litigation is pending for the property wherein, the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding u/s 145 of the Code, would not be justified. In the instant case, the suit being subsequent to the initiation of the proceeding u/s 145 of the Code, the question of initiation of the parallel proceeding during the pendency of the civil suit does not arise and in the case under reference the suit which was filed earlier to the proceeding u/s 145 of the Code was decreed and an appeal was taken from that decree. So, the Court there had already found about the possession of the property in that suit, which is not the case in the instant case.

During the time of dictation of this order, it was pointed out by Mr. Tulsidas Roy, learned Advocate on record for the petitioner and junior to Mr. Subroto Bose, learned Advocate, that the petitioner herein has not challenged the learned Magistrate''s order dated 14-1-92. Even if that be the position, if the proceeding has already been initiated and continued, then that proceeding should have been challenged, which has not been challenged. It is not open for the petitioner to argue or contend that a parallel proceeding cannot be initiated because the initiation has already been made and that the Court has not come to any final decision regarding the question of title and possession. Only the Court has come to a prima facie finding.

In that view of the matter, I find no merit in this revisional application. Hence this revisional application is dismissed on contest.