Md. Fazlul Haque Vs. Md. Hossain Ali Sarker and others

Appellate Division Cases

(Criminal)

PARTIES

Md. Fazlul Haque………… Petitioner

-Vs-

Md. Hossain Ali Sarker and others…………. Respondents

JUSTICES

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

Judgment Dated: 20th March 2008

The Code of Criminal Procedure, Section 144, 145,435/439A, 561A

However ultimately the learned Magistrate, 1st Class has realized this factual aspect and dropped the proceeding on 3.5.1995 asking the receiver to hand over the property in favour of the opposite party along with the sale proceed so far collected by him during the period of 16 years. But the said order passed by the learned Magistrate was challenged in the criminal revision under sections 435/439A of the Code of Criminal Procedure by the 2nd party which was ultimately dismissed on contest who also affirmed the impugned order passed by the learned Magistrate on 3.5.1995 in’ M.R. Case No. 293 of 1977…………………. (3)

Session of the civil court, the criminal court reserves no right to proceed under sections 144/145 of the Code of Criminal Procedure……………… (4)

Md Nawab AH, Advocated-on-Record………………….. For the Petitioner.

Respondents……………………………. Not represented.

Criminal Petition For Leave To Appeal No. 136 of 2006

(From the judgment and order dated 07-122005 passed by the High Court Division in

Criminal Miscellaneous Case No.885 of 1997)

JUDGMENT

Md. Hassan Ameen J: The petitioner (opposite party-petitioner) seeks leave to appeal against the judgment and order dated 07-12-2005 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No.885 of 1997 reversing the judgment and order dated 09-04-1996 passed by the learned Additional Sessions Judge, Pabna in

Criminal Revision No.3 of 1994 affirming the judgment and order dated 03-05-1992 passed by the Magistrate, 1st Class, Cognizing Court No.l, Pabna dropping the proceeding and directing the receiver for making over possession of the land in question to the petitioner and also paying the sale proceeds since the year 1977 till passing the order to the petitioner.

2. The opposite-party, Fazlul Haque, being 1st party, filed an application under Section 144 of the Code of Criminal Procedure with a prayer to draw a Criminal Miscellaneous proceeding restraining the 2nd party, the present petitioner for interfering into the peaceful possession of the land in question described in the schedule of the petition till disposal of such proceeding. Accordingly, M. R. Case No.293 of 1977 was started and the then learned Magistrate, 1st Class, drew a proceeding under Section 145 of the Code

of Criminal Procedure and appointed a receiver to look after the property in question where the 2nd party, the present petitioner appeared and filed a written objection, alleging, inter-alia, that 2nd party already filed a civil suit No. 146 of 1974 against the 1st party and others, which has duly been disposed of in the year 1979 and Civil Appeal No.52 of 1992 has also been preferred which is still pending because Civil Revision No.3586 of 1993 has been preferred by the aggrieved party against an interim order passed by the appellate Court which awaiting for disposal. So, the proceeding drawn under section 145 of the Code of Criminal Procedure and the very appointment of receiver restraining both the parties from entering into disputed land is out and out illegal.

3. However ultimately the learned Magistrate, 1st Class has realized this factual aspect and dropped the proceeding on 3.5.1995 asking the receiver to hand over the property in favour of the opposite party along with the sale proceed so far collected by him during the period of 16 years. But the said order passed by the learned Magistrate was challenged in the criminal revision under sections 435/439A of the Code of Criminal Procedure by the 2nd party which was ultimately dismissed on contest who also affirmed the impugned order passed by the learned Magistrate on 3.5.1995 in M.R. Case No.

293 of 1977.

4. Being aggrieved by and dissatisfied with the impugned judgment, passed by the learned Additional Sessions Judge in Criminal Revision No. 128 of 1982 the 2nd party, has filed this application under section 561A of the Code of Criminal Procedure alleging that when the subject matter is within the session of the civil court, the criminal court reserves no right to proceed under sections 144/145 of the Code of Criminal Procedure. Being aggrieved and dissatisfied with the impugned judgment and order dated 0904-

1996 passed by the learned Additional Sessions Judge, Pabna, the petitioner moved the High Court Division by filing Criminal Miscellaneous Case No.885 of 1997 and the learned Judges of the High Court Division upon hearing the parties reversing the judgment and order dated 09-04-1996 passed by the learned Additional Sessions Judge, Pabna in Criminal Revision No.3 of 1994 affirming the judgment and order dated 03-05-1992 passed by the Magistrate, 1st Class, Cognizing Court No. 1, Pabna dropping

the proceeding and directing the receiver for making over the possession of the land in question to the petitioner and also paying the sale proceeds since the year 1977 till passing the order to the petitioner. Hence this leave-petition.

5. Mr. Md. Nawab Ali, the learned Advocate-on-Record, appearing for the petitioner, submits that in consideration of the entire facts and circumstances of the case, the petitioner obtained decree in Other Class Suit No. 146 of 1974 against the 2nd parties-respondent on 18-09-1978 against which present 2nd parties respondents did not prefer any appeal in the Court of District Judge, Pabna and hence the aforesaid decree is binding upon the 2nd party-respondents but the learned Judges of the High Court Division illegally and arbitrarily decided that the learned Magistrate is not authorized to regulate

the physical possession of the land in question keeping the matter pending in a civil Court and thus has caused miscarriage of justice.

6. We have heard the learned Advocate for petitioner and perused the materials available in record and reasons to believe that the points raised by the learned Advocate for the petitioner have got no substance. Accordingly, the petition is dismissed.

Source : V ADC (2008),531

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