Pradip Rajbongshi vs Smti. Geeta Rani Rajbongshi And 6 ...
2021 Latest Caselaw 780 Gua

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GAHC010139552019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : Crl.Rev.P./255/2019

         PRADIP RAJBONGSHI
         S/O SRI BENI MADHAV RAJBONGSHI, R/O NO. 2 BARANGAJULI, P.S.-
         DIMAKUCHI, DIST-UDALGURI, BTAD (ASSAM)



         VERSUS

         SMTI. GEETA RANI RAJBONGSHI AND 6 ORS.
         W/O LT. BIJOY RAJBONGSHI, R/O NO. 2 BARANGAJULI, P.S.-DIMAKUCHI,
         DIST-UDALGURI, BTAD (ASSAM)

         2:BISWAJIT RAJBONGSHI
          S/O LT. BIJOY RAJBONGSHI
          R/O NO. 2 BARANGAJULI
          P.S.-DIMAKUCHI
          DIST-UDALGURI
          BTAD (ASSAM)

         3:SMTI. PINKI RAJBONGSHI
          D/O LT. BIJOY RAJBONGSHI
          R/O NO. 2 BARANGAJULI
          P.S.-DIMAKUCHI
          DIST-UDALGURI
          BTAD (ASSAM)

         4:SMTI. NANDINI RAJBONGSHI
          D/O LT. BIJOY RAJBONGSHI
          R/O NO. 2 BARANGAJULI
          P.S.-DIMAKUCHI
          DIST-UDALGURI
          BTAD (ASSAM)
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              5:MANIK RAJBONGSHI
               S/O SRI KAMAKHYA RAJBONGSHI
               R/O NO. 2 BARANGAJULI
               P.S.-DIMAKUCHI
               DIST-UDALGURI
               BTAD (ASSAM)

              6:KAILASH RAJBONGSHI
               S/O SRI KAMAKHYA RAJBONGSHI
               R/O NO. 2 BARANGAJULI
               P.S.-DIMAKUCHI
               DIST-UDALGURI
               BTAD (ASSAM)

              7:PINTU
               S/O UNKNOWN
               R/O NO. 2 BARANGAJULI
               P.S.-DIMAKUCHI
               DIST-UDALGURI
               BTAD (ASSAM

Advocate for the Petitioner       : MR. M A SHEIKH

Advocate for the Respondent : MR S DAS

                                    BEFORE
                    HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN

                                             :: O R D E R ::

03.03.2021

Heard Mr. M.A. Sheikh, learned counsel appearing for the petitioner. Also heard Mr. S. Das, learned counsel appearing for the respondents.

Challenging the impugned order and judgment dated 11.04.2019 passed by learned Addl. Sessions Judge, Udalguri, in criminal revision case No. 15/2017 whereby learned Court has set aside the order dated 28.08.2017passed by the learned Sub-divisional Magistrate, in Misc. case No. 228/2016, the present criminal revision petition has been preferred.

The petitioner, herein, filed the petition under Section 144/145 Cr.P.C. before the learned Deputy Commissioner, Udalguri, which was forwarded for enquiry and on the basis of the report of the Enquiry Officer a proceeding was drawn against the second party under Section 107 CrPC. Subsequent thereto, by giving an opportunity of hearing to both the parties and after examining the witnesses from both the sides, the learned trial Court declared the possession in favour of the petitioner and also directed the second party to vacate the disputed land with further direction to both parties to maintain peace and tranquility. It Page No.# 3/4

was further directed that the possession of property be given to the petitioner with help of the police.

The respondents however, challenge the aforesaid order before the Additional Sessions Judge, Udalguri by way of criminal revision No. 15/2017 and the learned Addl. Sessions Judge, vide order dated 11.04.2019 set aside the aforesaid order passed by the learned trial Court observing that such an order is beyond jurisdiction of the Court as no proceeding under Section 145 Cr.P.C. was drawn by the Court. Further it is reflected in the order of the learned Addl. Sessions Judge that the land which has been described in the order of the learned trial Court is also different than that of the land mentioned in the main petition.

Now, the petitioner has come before this Court along with the present petition challenging the order of the learned Addl. Sessions Judge vide order dated 11.04.2019 as the petitioner is not at all in fault for not properly mentioning the schedule of the land and or not drawn proceeding under Section 145 CrPC. It contends that the petitioner should not be victimized for the wrong not committed by him.

Considered the submissions of both the sides and gone through the LCRs that has been received and other connected documents.

It is to be noted that the petitioner although, filed the petition under Sections 144/145 Cr.P.C and the enquiry officer has also submitted a report to draw proceeding under Sections 107/145 Cr.P.C, but the learned trial Court simply registered the case under Section 107 Cr.P.C. and evidence was also recorded accordingly. That being so the declaration of the possession of the land in a proceeding under Section 107 Cr.P.C. is wholly beyond jurisdiction. In the impugned judgment of the trial Court nothing has been discussed about the land dispute between the parties and despite declared possession of the present petitioner.

The purpose and procedure of both the proceedings are totally different. Under Section 107 Cr.P.C., the Court can direct both the parties to maintain peace and tranquility of the over the disputed area but can never declare possession. On the other hand, under Section 145 Cr.P.C., the Court can simply declare the possession but cannot direct the other party to vacate the land like that of civil Court. From the impugned order of the trial Court it reflects that Court has directed the Circle Officer to put the petitioner in the disputed land by vacating the second party from the land. Such a direction is beyond jurisdiction inasmuch as, proceeding under Section 145 Cr.P.C. was never drawn by the learned trial Court. The order passed by the Addl. Sessions Judge call for no interference as the same has been passed with due observation and findings. It is notable that for adopting the wrong procedure by the concerned Court, the parties were deprived of legal remedy.

Considering all entirety, the impugned order passed by the learned trial Court dated 28.08.2017 is hereby quashed and set aside with a direction to proceed with the matter, as per law and passed an appropriate order on the basis of the evidence already recorded by giving the opportunity on being heard to both the sides. It is made clear that while deciding the case, the observation and finding of the learned Page No.# 4/4

Addl. Sessions Judge shall not be taken into account by the learned trial Court.

Both the parties hereby directed to appear before the trial Court on or before 07.05.2021. Return the LCRs.

JUDGE

Comparing Assistant