Haran Sardar & Ors vs The State Of West Bengal & Ors
2022 Latest Caselaw 3581 Cal

            IN THE HIGH COURT AT CALCUTTA
           CRIMINAL REVISIONAL JURISDICTION
                    APPELLATE SIDE

Present:
The Hon'ble Justice Ajoy Kumar Mukherjee

                           C.R.R. 3357 of 2019
                           Haran Sardar & ors.
                                    -vs-
                      The State of West Bengal & ors.


For the Petitioners           : Mr. Anirban Mitra
                                Mr. Amit Halder
                                Mr. Akash Ghosh
                                Md. Wasim Akram

For the State                 : Mr. S.S. Imam
                                Mr. S. Kundu

Heard on                      : 21.6.2022

Judgment on                   : 27.06.2022


Ajoy Kumar Mukherjee, J.

1. The present revisional application has been directed for quashing of the

entire proceeding in connection with M.P. Case No. 504 of 2014 under section

133 of the Code of Criminal Procedure now pending before Executive

Magistrate, Basirhat, North 24 Parganas.

2. The case as set out by the petitioners in the revisional application is that

an application was filed by the opposite party no. 2 before the learned

Executive Magistrate, North 24 Parganas in connection with M.P. Case no. 504

of 2014 alleging that opposite party no. 2 is the owner of 21 Satak of land at

Dag no. 332 corresponding to L.R. plot no. 2639 which comprised of a room

along with a kitchen and a privy. There is an adjacent pathway adjacent to that

plot but the present petitioners and his family members are trying to restrain

the opposite party no. 2 from using the adjacent pathway over plot no. 3074

and as a result, the opposite party no. 2 was compelled to file the said

application. The said application was heard from time to time and by an order

dated 14.2.2019, the Executive Magistrate, Basirhat was pleased to pass an

order, thereby directing that the order dated 15.2.2018 stands absolute and

the opposite parties of that case i.e. petitioners herein must remove the

obstruction immediately and the compliance to be submitted by next date

otherwise opposite parties/petitioners herein will be liable for prosecution

under Section 188 of the Indian Penal Code.

3. It is further case of the petitioners that they have already filed a

partition suit being no. T.S. 119 of 2019 before learned Civil Judge, (Senior

Division) at Basirhat for partition and injunction in respect of said plot being

J.L, no. 93, Dag no. 3074, measuring 44 Satak of land under Khatian no.

2411, 2637 and 2466,where pathway allegedly exists. The petitioners also filed

an ad-interim injunction application and learned trial Judge was pleased to

pass an order of status quo which is continuing till date.

4. Learned advocate for the petitioner Mr. Anirban Mitra strenuously

argued that without considering the materials on record particularly the

pendency of the civil suit and the order of status quo in connection with same

plot of land, Magistrate has passed the impugned order mechanically and

without applying judicial mind. Learned Magistrate also failed to consider

essential ingredients enumerated under Section 133 of the Code of Criminal

Procedure as he did not take evidence of either of the parties before passing the

impugned order. Now the continuation of proceeding under Section 133 of the

Code of Criminal Procedure will be an abuse of process of law and therefore

liable to be quashed on the ground that subject matter of the said application

under Section 133 of the Code of Criminal Procedure is also the subject matter

of the civil suit, wherein the order of status quo passed by a competent civil

court, is in force.

5. Learned advocate for the petitioners Mr. Mitra further argued that there

is no material or evidence which goes to show that any nuisance/obstruction

was created at the instance of the petitioners at the time of passing of the

impugned order dated 15.2.2019. It appears from the written complaint filed

Under Section 133 of the Code of Criminal Procedure that the allegation is that

the second parties of that case namely, the petitioners herein, are threatening

to raise construction in plot no. 3074 in order to obstruct first party/ opposite

party no. 2 in respect of their only ingress and egress from their plot No. 2639.

It further appears that the first party and her deceased husband were

apprehending of a serious assault which can cause murder. There is also

alleged apprehension of breach of peace. The schedule of complain described

the pathway, which she mentioned as her only ingress and egress from her

house, situates at Mouza Tatra Neyah J.L. no. 93 Khatian no. 2411/2337

being plot no. 3074 which runs towards east west direction and which is a

pathway measuring 155 long and 8 feet wide. It further appears from the

schedule of Title Suit No. 119 of 2019 that schedule of said partition suit also

relates to Mauza Tatra Neyah J.L. No. 93, Khatian no. 2411, 2637, 2466 being

plot no. 3074 measuring 44 katas of land. So it is not disputed that the

pathway in question in application under Section 133 of the Code of Criminal

Procedure and property in question in Title Suit No. 119 of 2019 are the same

i.e. plot no. 3074 under Khatian no. 2411 and 2637. The petitioners also filed

an application for information dated 18.6.2022 wherefrom it appears that

learned civil Judge, Senior Division Basirhat has passed a direction to

maintain status quo with regard to the nature and character of the above

mentioned suit property i.e. over plot no. 3074 till 28.6.2022.

6. Before going to the further details, let me reproduce Section 133 of the

Code of Criminal Procedure which reads as follows:

"133. Conditional order for removal of nuisance.- (1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court."

7. In view of the facts and circumstances of the case as stated above, it is

clear that the complaint case was filed under Section 133 of the Code of

Criminal Procedure by Halima Molla/Opposite Party No. 2 only on the basis of

an apprehension and/or threat allegedly made by the petitioners herein that

the petitioners are going to obstruct the only pathway for their ingress and

egress. Admittedly, no imminent danger for filing the said application has been

manifested in application as required under Section 133 of the Code of

Criminal Procedure and it is also evident that an order of status quo in respect

of said plot of land is in force as on this date. Now Section 138 of the Code of

Criminal Procedure contemplates as under:-

"138. Procedure where he appears to show cause:- (1) if the person against whom an order under Section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. (2) if the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.

(3) if the Magistrate is not satisfied , no further proceedings shall be taken in the case."

8. Needless to say that the jurisdiction of the Magistrate under Section 133

of the Code of Criminal Procedure is for its immediate effect which is for

removal of obstruction and/or nuisance from public place and before passing

any order, the Magistrate have to decide summarily whether such piece of land

is a public or a private land and that too only for incidental purpose. If It can

be shown that the plot in question is not a public thoroughfare but is a private

property of the petitioners, the learned Magistrate will be precluded from

dealing with the place under the section. The object and purpose beyond

Section 133 of the Code of Criminal Procedure is in the sense that if the

learned Magistrate fails to take recourse immediately, irreparable danger would

be caused to the public but the order under section 133 of the Code is not

intended to apply to future likelihood or event that may happen at some later

point of time. It does not deal with all potential danger but in the cases where

danger is in existence.

9. It is also well settled that mere pendency of the civil suit is no sufficient

ground for dropping any proceeding under Section 133 or 137 or 138 of the

Code of Criminal Procedure because civil suit decides permanent settlement of

the rights of the parties but if the nuisance is existing and urgent relief is

required then Section 133 of the Code of Criminal Procedure will certainly

come into play. In other words, if the nuisance is such that there is urgent

need of removal of nuisance or obstruction on the pathway, the enquiry is to be

made by the learned Magistrate and order is to be passed and learned

Magistrate's, right to pass appropriate order in such urgent cases, cannot be

denied merely because some civil suit is pending wherein no specific order has

been passed. But the proceeding under Section 133 of the Code of Criminal

Procedure obviously cannot be enforceable when a specific order is passed by

the civil court in respect of the possession of the property or when rights of

parties are decided.

10. Let us come back to the present case wherein merely an apprehension of

threat has been expressed over a pathway the right off which is yet to be finally

decided by a competent Civil Court. Moreover, in the present context, the

nature of relief which has been granted by the learned Executive Magistrate,

has been passed only on the basis of a police report and no evidence was

taken, in compliance with section 138 of the Code before making the order

absolute.

11. Learned advocate for the petitioners referred a Judgment of Andhra

Pradesh High Court passed in the case of Kranti Parcel Service vs. The State

which was disposed of on 10.9.1996 stating that Section 138 of the Code

prescribes the procedure to be followed after appearance of the person in

pursuant of the show cause notice. It mandates that the Magistrate shall take

evidence in the matter as in a summons case and there, afterwards if he is

satisfied with the order made originally is reasonable, he shall confirm the

same or if he thinks, to modify he can modify the orders earlier passed by him.

If the Magistrate is not so satisfied no further proceedings shall be taken in

the case.

12. Accordingly, Sub-section (1) of Section 138 of the Code of Criminal

Procedure casts an obligation on the Magistrate to take evidence as in a

summons case and admittedly in the present case, no evidence was recorded

by the Magistrate.

13. Having considered the facts and circumstances of the case and

considering the fact that there is no urgent need of removal of nuisance or

obstruction on the path in view of the fact that a competent civil court has

already passed an order of status quo in respect of nature and character of

property where alleged pathway exists and which is still in force and by which

the parties in the suit are compelled to maintain the present nature and

character of the property in question, I find that there is hardly any chance of

creating immediate obstruction on the alleged path or there is any urgent need

of removal of nuisance and as such the proceeding initiated under Section 133

of the Code of Criminal Procedure if allowed to continue will be an abuse of

process of court and may confront the order of status quo in respect of which

appropriate civil court is in seisin.

14. In view of the above, the revisional application being CRR 3357 of 2019

is allowed.

15. The entire proceedings of M.P. Case no. 504 of 2014 under Section 133

of the Code of Criminal Procedure is hereby quashed.

There will be no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be given to the

parties upon compliance of all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)