Palan Das vs State

Molay Kumar Basu, J.—This revisional application is directed against the orders dated December 4, 1974, July 9, 1997, March 1, 1999, and March 19, 1999, passed in N.G.R. 1887 of 1974 u/s 145 of the Code of Criminal Procedure by the Executive Magistrate, Alipore, subsequently re-numbered as M. 1887 of 1974 and pending in the court of the Executive Magistrate, Baruipur, by Palan Das and 9 others against the State of West Bengal (opposite party No. 1) and Lakshman Chandra Gayen, opposite party No. 2 and others).

The case of the Petitioners is that the disputed plots of land had been settled in favour of. the Petitioners by means of licence and thereafter, by pattas and since then the Petitioners has been possessing the land on payment of rents etc. The opposite party No. 2 made an application before the concerned learned Executive Magistrate u/s 145 of the Code of Criminal Procedure in respect of the said plots of land on the ground that there was dispute on the question of possession therein and also there was serious apprehension of breach of peace The learned Executive Magistrate without issuing any notice upon the Petitioners (who were the second parties in that proceeding) on the basis of ex Parte police report passed an order on December 4, 1974, drawing up a proceeding u/s 145 of the Code of Criminal Procedure there by restraining both the parties from entering into the disputed plots of land. But in passing this order the learned Executive Magistrate omitted to record his satisfaction in violation of the requirements of the provisions of Sections 145 and 146 of the Code of Criminal Procedure. In that order, the learned Magistrate also appointed a Receiver directing him to take charge of the harvested paddy to dispose of the same and to maintain accounts and also to deposit the sales-proceeds with the treasury. The order also enjoined the filing of written statements by the second parties and documents in support of their claim b,y the next date fixed that is January 16, 1975. thereafter the Circle Inspector of the concerned Circle submitted a report dated August 8, 1975, showing that the men of the second party were cultivating the disputed land along with some of the first party. Thereafter the said proceedings u/s 145 of the Code of Criminal Procedure were set down for hearing by the learned Executive Magistrate and a good number of dates were fixed for the purpose but to no effect. The parties are still out of possession and the land is being under the supervision of the Receiver. It is the further contention on behalf of the Petitioners that the Receiver had not deposited the sale proceeds with the treasury inspire of the definite direction by the Executive Magistrate in that behalf. Hence this petition for setting aside the above-mentioned impugned orders and also for quashing the entire proceeding which has been rendered illegal and invalid u/s 482 of the Code of Criminal Procedure.

The opposite party No. 2 has contested the petition. But the other opposite parties including the State of West Bengal have remained absent throughout.

The main point for consideration is whether the impugned orders, namely, the orders darted December 4, 1974, July 9, 1997 and March 19, 1999 are illegal and improper.

The learned advocate appearing on behalf of the opposite party No. 2 has attracted my attention to the fact that the main order challenged by the Petitioner namely, December 4, 1974 and July 9, 1997, being passed about 26 years back, the revisional application has been barred by limitation and so far as the order dated March 19, 1999, is concerned the Petitioners having not produced any copy thereof the revisional application is liable to be dismissed on that score.

To this contention, the learned advocate for the Petitioners has failed to give any satisfactory reply. He admits that the orders dated December 4, 1974 and July 9, 1997, having been passed long back and the revisional application having not been filed within the statutory period of three months the application is hit by the law of limitation. His contention is that in view of Sections 482 and 483 this Court being clothed with the general supervisory power to keep watch on the functioning of the lower courts, those orders should be the subject matter of scrutiny by this Court and if it is found by this Court that those orders were illegal then this Court is quite competent to set aside those orders under Sections 482 and 483 of the Code of Criminal Procedure.

But, I am not impressed by this contention. It is the cardinal principle that Section 482 of the Code of Criminal Procedure cannot be applied where the Code has provided for a positive alternative remedy. Had that been the position as is sought to be construed, then in not a single revisional application, the provisions relating to limitation, would have the least significance. So far as those two orders are concerned, the only remedy before the Petitioners, lies in a revisional application and they cannot claim any benefit or advantage of the Section 482 or 483 of the Code of Criminal Procedure. They, having not moved this Court against those two orders within the prescribed period of limitation, namely, 90 days the revisional application challenging the validity of those orders becomes hopelessly time-barred. So far as the order dated March 19, 1999 is concerned, it appears that the Petitioners have not cared to furnish any copy thereof so that it can not be understood what the exact nature of that order is. However, the learned advocate submits that so far as his memory goes, that order of the date March 19, 1999, contains the similar purport of the order dated March 1, 1999, copy of which has been furnished namely, ''both sides appeared. No time today''. If that be so, then also, the revisional application against such an order will not be strictly maintainable inasmuch as u/s 397(2) of the Criminal Procedure Code, the powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order. The order to be revisable must be a final order and such one as would affect the rights and liabilities of the parties. An order under which simple extension of time or adjournment of the hearing has been allowed cannot be said to be a final order in the sense in which it is used under this section. So from that standpoint that order also will not be strictly revisable order and the revisional application u/s 397 read with Section 401 of the Code of Criminal Procedure cannot strictly lie.

The question is whether that order can be made subject matter of Sections 482 or 483 of the Code of Criminal Procedure. u/s 482, the High Court has been given an inherent power to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Similarly, under Sections 483, it is laid down that every High Court shall so exercise it superintendence over the courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates.

On a perusal of the copies of the Order Sheets of the Executive Magistrate concerned filed by the Petitioner before this Court, it appears that the matter has been pending since long. It originated in 1974 and since then, it is being dragged indefinitely, the presiding officer appears to have no concern for its expeditious disposal and everyday, stereotyped orders have been passed that he is busy otherwise and he has no time and therefore, the hearing be deferred to another date and it this way, the matter has become very old. This is extremely unfortunate that such a simple matter should be dragged in this fashion while it could have been disposed of by the Executive Magistrate concerned within a very short time particularly when the disputed property has been handled by the Receiver appointed 26 years bac0k. So, in view of the provisions of Sections 482 and 483 of the Code of Criminal Procedure, this Court takes great exception to the way in which the Executive Magistrate is showing his apathy to the disposal of the case within a reasonable short time and hence it is a fit case where a direction should be given to him to put an end to the hearing and disposal of this age old matter within a specific date. Accordingly, it is ordered that the learned Executive Magistrate shall fix a date for hearing of this case within one month from the date of communication of this order according to his convenience and on the date so fixed he shall completely hear out the matter and pass his order without fail thereby dispersive of the case finally. The revisional application is accordingly disposed of.

Let xeroxed certified copy of this order be delivered to the parties within 10 days from the date of deposit of the requisite stamps and folios.

Application disposed of with directions.