Mujaffar Mondal vs State Of West Bengal

Madhumati Mitra, J

This is an application under Section 482 of the Code of Criminal Procedure 1973 filed by the petitioner challenging the order dated 25.05.2017, passed by the Learned Additional District Judge, 3rd Court at Balurghat, Dakhin Dinajpur, in connection with Criminal Revision No.09 of 2017.

The case of the petitioner in brief is that the predecessor in interest of the petitioner was the recorded 'Bargadar' in respect of the land situated at JL.No.162, Khatian No.138, Dag No.227 within Mouza-Jamalgachhi, Police Station-Tapan, District-Dakhin Dinajpur and the total area of the said land is 1.22 acres. After the demise of his father Chainuddin Mondal, the present petitioner, being his legal heir has been cultivating the said land. Opposite party No.2 is also a 'Bargadar' in respect of 1.21 acres of land situated in the same area and the name of the opposite party no.2 has been recorded as Bargadar in respect of the land owned by one Gayaprasad Bhagat. The name of the predecessor in interest of the petitioner has been recorded as a Bargadar in respect of the land owned by one Sahadeb Bhagat measuring about 1.22 acres at Mouza-Jamalgachhi. Petitioner has alleged that the opposite party no.2 tried to grab the land from the petitioner and he initiated one proceeding under Section 145 of the Code of Criminal Procedure and application was registered as M.P.Case No.83 of 2014 and in the said complaint, the opposite party no.2 alleged that as a 'Bargadar' he has been cultivating the land since long and he is in possession of the land for more than 12 years after the death of his father. He has stated that he has been cultivating the land of Gayaprasad Bhagat and Sahadeb Bhagat measuring about 2.83 acres of land by giving shares of the produce to the land owners.

Vide his order dated 19.09.2016 passed in connection with M.P.Case No.83/2014, the Learned Execution Magistrate, Balurghat came to a conclusion that the present opposite party no.2 was in possession of the land in question and the opposite party no.2 should be entitled to such possession thereof until eviction therefrom in due course of law.

The order passed in M.P.Case No.83 of 2014 was challenged before the Learned District and Sessions Judge by preferring one revisional application and the said revisional application was dismissed on May 25th, 2017 by the Learned Additional District Judge, 3rd Court, Balurghat.

The said order of the Learned Additional District and Sessions Judge, 3rd Court, Balurghat dated 25.05.2017, passed in connection with Criminal Revision No.09 of 2017, is under challenge.

At the time of hearing Learned Advocate appearing for the petitioner has assailed the impugned order passed by the Learned Additional District and Sessions Judge in Criminal Revision No.09 of 2017 on the ground that the Learned Judge has failed to appreciate that the Learned Magistrate has no power under Section 145 of the Code of Criminal Proceeding to pass an order regarding restoration of possession. It is the specific contention of the petitioner that the Learned Magistrate exceeded his jurisdiction and passed the impugned order which has not been vested in him by law. It has also been forcefully contended on behalf of the petitioner that the issue involved in the present dispute purely relates to the claim of bargadarship over the disputed land. Learned Magistrate has no jurisdiction to entertain any dispute relating to Bargadarship in view of the provisions contained in Section 21 of the West Bengal Land Reforms Act. Learned Additional Session Judge has also committed an error apparent on the face of record. Learned Advocate has argued that the Learned Judge has failed to appreciate that the predecessor of the petitioner was bargadar in respect of the disputed land and his name was recorded in the record of right as bargadar in respect of the disputed land.

On the other hand, Learned Advocate appearing for the opposite party has submitted that the impugned order does not suffer from any legal infirmity. He has further submitted that the Learned Judge has rightly dismissed the revisional application and he has prayed for dismission of the present application as the same is devoid of merit.

I have carefully considered the submission and rival submission advanced by the Learned Counsel for the parties.

Before delving deep into the matter, it would be appropriate to deal with the relevant Sections of the Code of Criminal Procedure.

M.P.Case No. 83 of 2014 arose out of an application under Section 145 of the Code of Criminal Procedure. It has been specifically contended by the Learned Advocate appearing for the petitioner that the Magistrate has no power under Section 145 Cr.P.C. to pass an order to restore possession.

Admittedly, Learned Magistrate passed an order in exercise of his power under Section 145 Cr.P.C. Section 145 of the Code of Criminal Procedure empowers the Magistrate to intervene and pass a temporary order in regard to the possession of the property in dispute having effect until the actual right of the parties has been determined by a competent Civil Court. In this connection I would like to refer a decision of Bhinka And Others Vs. Charan Singh reported in AIR 1959 SC 960.

In paragraph 16 of that judgement Hon'ble Apex Court was pleased to observe as under:

"This leads us to the consideration of the legal effect of the order made by the Magistrate under Section 145 of the Code of Criminal Procedure. Under Section 145(6) of the Code, a Magistrate is authorized to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. The Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is co-terminous with the passing of a decree by a civil court and the moment a civil court makes an order of eviction, it displaces the order of the criminal court. The Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani tersely states the effect of orders under Section 145 of the Code of Criminal Procedure thus:

"These orders are merely police orders made to prevent breaches of the peace. They decide no question of title...".

We, therefore, hold that a provisional order of a Magistrate in regard to possession irrespective of the rights of the parties cannot enable a person to resist the suit under Section 180 of the Act."

The order passed by the Learned Magistrate regarding restoration of possession is subject to the final decision of Civil Court regarding the dispute in connection with immovable property. The life of the order is coterminous with the passing of a decree by a Civil Court. The order passed by the Learned Magistrate under Section 145 Cr.P.C. is temporary in nature and subject to the decision of a competent Civil Court.

The contention of the Learned Advocate for the petitioner to the effect that the Learned Magistrate has no jurisdiction to pass an order regarding restoration of possession is not correct and has no legal force at all. In appropriate cases the Magistrate has the authority to pass an order regarding restoration of possession of immovable property.

From the order dated 19.09.2016, passed in connection with M.P.Case No.83 of 2014, it transpires that the Learned Magistrate passed the order of restoration of possession of disputed land in favour of the present opposite party on being satisfied after receiving the report from the B.L & L.R.O. that the first party i.e. the petitioner of M.P.Case No.83 of 2014 was in possession of the suit plot since last 20/22 years. The order of restoration of possession passed in M.P.Case No.83 of 2014, reveals that the Learned Magistrate considered the relevant provisions of law as contained in sub-Section 4 of Section 145 as well as the proviso to sub-Section 6 of Section 145 of the Code of Criminal Procedure while passing the impugned order.

Moreover form the materials placed on record it transpires that the present petitioner applied before the competent authority for recording his name in respect of the disputed land as an bargadar under Section 15(A) of the West Bengal Land Reforms Act and the said prayer of the present petitioner was turned down by the Officer empowered under Section18(1) of the Act. While passing the said order on 11.09.2014, the officer empowered observed that the father of the petitioner was not in possession of the disputed land as bargadar by cultivating seasonal crops at the time of his death. The present petitioner claimed his right over the disputed land as bargadar by stating that his father was the bargadar of the land in question and after the death of his father he continued to possess the land in question as bargadar by cultivation, but that said claim of the present petitioner was turned down by the officer empowered under Section 18(1) of W.B.L.R.Act. Specific observation was made by the Magistrate that his father was not in possession of the disputed land at the time of his death. Present petitioner claimed that he derived the right to possess the disputed land as bargadar from his father. The said claim was not found to be true in the order dated 19.09.2014 passed by Officer empowered under Section 18(1) of the West Bengal Land Reforms Act.

The order of the Learned Magistrate has been affirmed by the Learned Additional Session Judge, in Criminal Revision no.09 of 2017.

The present application has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, challenging the said order of the Learned Additional Sessions Judge.

Having regard to the materials placed on record, I do not find any reason to interfere with the concurrent findings of the Learned Courts below.

Moreover, High Court in exercise of its power under Section 482 of the Code of Criminal Procedure cannot in absence of error on a point of law reappraise the concurrent findings of the Learned Courts below and reverse a decision which is based on sound legal principle of law.

I do not find any reason to interfere with the judgment passed by the Learned Additional Sessions Judge in Revision.

Thus, the criminal revisional application being C.R.R.1834 of 2017 is disposed of.

Let a copy of this judgment along with lower court record be sent down immediately.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance with all necessary formalities.