Amin Ahmed and another Vs. The State and another 2017 (1) LNJ 398

Case No: Criminal Miscellaneous Case No. 6037 of 2017

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Mr. Mohammad Kamal Hossain, Md. Aminul Islam,

Citation: 2017 (1) LNJ 398

Case Year: 2017

Appellant: Amin Ahmed and another

Respondent: The State and another

Subject: Criminal Law

Delivery Date: 2017-07-13

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

 

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

14.03.2017

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Amin Ahmed and another

. . 2nd Party-Revision Respondent-Petitioner

-Versus-

The State and another

...1st Party-Revision Applicant-Opposite parties

Code of Criminal Procedure (V of 1898)

Section 144

Provisions of Section144 of the CrPC must be strictly construed and only in cases of emergency when there is no alternative remedy for combating the apprehended dangers shall the power under Section 144 of the CrPC be sparingly used, for, the powers granted under the said Section is in derogation of the ordinary civil rights of the citizens.                                                . . .(9)

Code of Criminal Procedure (V of 1898)

Section 144

The concerned Magistrate is required to form an opinion to the effect that an urgent measure should be taken in order to prevent an incident which is highly likely to occur and, only then, upon stating the material facts, he may pass necessary direction upon a particular individual or upon the public in general for a maximum period of sixty days. By employing the words “such Magistrate may,-----direct----”, the Legislature has made it discretionary for the concerned Magistrate to take any action depending on the particular facts and circumstances.        . . .(9)

Code of Criminal Procedure (V of 1898)

Section 144

The Magistrates should use their powers under Section 144 of the CrPC only in exceptional circumstances upon judiciously considering the report, information and the situation that prevails at the relevant point of time; they should not see their duty under this provision as a mere routine work.      ...(12)

Code of Criminal Procedure (V of 1898)

Section 144

When resorting to the means available in Chapters VIII, X or XII may not be viable; only in that urgent situation; a Magistrate is invested with jurisdiction to exercise powers under Chapter XI.   . . . (12)

Code of Criminal Procedure (V of 1898)

Section 145

Object of Section 145 is the prevention of incidents likely to arise out of the disputes over possession of an immovable property resulting in breach of peace.   . . .(15)

Code of Criminal Procedure (V of 1898)

Section 145

Under the scheme of this provision, the concerned Magistrate, upon coming to know through police report or otherwise as to the likelihood of breach of peace over a land regarding its actual possession, must satisfy himself about the alleged likelihood of breach of peace. In order to be satisfied, the Magistrate should minutely examine the police report or information received through other source. After judiciously considering the police report or other information if the Magistrate is satisfied that there exists a circumstance which is risky for the contending parties and people in general, then it becomes a bounden duty for the Magistrate to make a written order in view of the employment of the word “shall” (he shall make an order in writing). This is popularly known as preliminary order.                                               . . . (15)

Code of Criminal Procedure (V of 1898)

Section 145

Preliminary order must contain the reasons of the Magistrate’s satisfaction, the nature of the order; meaning that whether the Magistrate is going to merely ask the contending parties for hearing on the alleged disputes or whether the order is going to be passed in the form of injunction for maintaining peace on the disputed land upon attaching the property by appointing a receiver.      . . . (15)

Code of Criminal Procedure (V of 1898)

Section 145

Once the Magistrate decides to pass any order as mentioned in the body of judgment, the same must contain the directions upon the parties to prove their respective claims by filing written statements within a fixed time either in person or through their pleaders. The  Magistrate, thereafter, upon perusing their statements, hearing the parties and considering the evidence, would come to a decision on the possession of the property with a finding as to whether any or which of the parties was in possession. If it is surfaced that any party was dispossessed within any date of last two months from the date of preliminary order, then the dispossessed party may be restored to its possession upon declaring the said party to be the lawful possessor of the property until evicted therefrom by the order of a competent Court.            . . .(16)

Code of Criminal Procedure (V of 1898)

Section 561A

Entertainment of revisional application after such a long period of two years by the learned Sessions Judge, Sylhet without judiciously scrutinizing the facts as to whether any civil suit is pending over the disputed property appears to us to be a fatal failure of the learned Sessions Judge causing failure of justice and, hence, the same is liable to be quashed for ends of justice.             . . . (19)

Code of Criminal Procedure (V of 1898)

Sections 144 and 145

Guidelines for the Sessions Judges to entertain revisional application against the Magistrates’ order under Section 144/145 of the CrPC

(1)   The learned Sessions Judges must check the fact as to whether the aggrieved party has moved before the revisional Court promptly; if there is a long delay in filing revisional application, whether categorical and plausible explanations have been furnished for the satisfactions of the revisional Court.

(2)   The learned Sessions Judges shall minutely examine the averments of the revisional application to see whether any civil suit with regard to the disputed property is pending before any competent Court. If the application states that a civil suit is pending over the same dispute, then the learned Sessions Judge must be sceptical in entertaining the revisional application unless the situation appears to be so vulnerable that it warrants the interference of the learned Sessions Judge.

(3)   The learned Sessions Judges at the time of entertaining the revisional applications must be satisfied that the Magistrate has committed gross illegality in passing the order under Section 144 or 145 of the CrPC.      . . .(22)

Code of Criminal Procedure (V of 1898)

Sections 144 and 145

Guidelines for the Magistrates to deal with cases under Section 144/145 of the CrPC—Though  an aggrieved party is at liberty to approach the Court of District Magistrate at any point of time invoking the jurisdiction of the District Magistrate under Section 144 or 145 of the CrPC during pendency of a civil suit in which no order as to possession of the disputed property has been passed by the civil Court, it is incumbent upon the learned Magistrate to inquire into the fact as to whether there is any civil suit pending over the same property and once the Magistrate comes to know about the pendency of the civil suit regarding the disputed property, his first duty is to direct the aggrieved party to obtain an injunction from the civil Court; if it appears to the Magistrate that the situation is so risky that an incident of breaching the peace in the area is likely to occur, the Magistrate then becomes competent to pass necessary order/s under Section 144/145 of the CrPC.           . . . (23)

Gopi Mohun Mallick Vs. Taramoni Chowdhurani, ILR 5 Cal 7; Satish Chandra Roy and others Vs. The Emperor, 11 CWN 79; Bishessur Chukkerbutty and another Vs. The Emperor, 20 CWN 758; Rashhebari Singh and others Vs. Jagnarain Roy, AIR 1917 Patna 154; Ashutosh Roy and others Vs. Harish Chandra Chattopadhya and others, 26 CrLJ 874; Ram Narain Sah and another Vs. Parmeshar Prasad Sah and other, AIR 1942 Patna 414; Taturam Sahu Vs. The State, AIR 1953 Orissa 96; Sri Ram Das Gaur Vs. The City Magistrate Varanasi, AIR 1960 Allahabad 397; Azahar Khan and others Vs. The State, 12 DLR (Dacca) 838; Mueez Ali Hatem Ali Vs. State, 19 DLR(WP) 15; Farid Ahmed Vs. Province of East Pakistan, 21 DLR 225 and Provat Mondal Vs. State 64 DLR 182 ref.

Mr. Mr. Mohammad Kamal Hossain, Advocate

…. For Petitioners

Mr. Md. Aminul Islam, Advocate

. . .For the opposite parties

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Pursuant to an application filed by the 2nd party-petitioners under Section 561A of the Code of Criminal Procedure, 1898 (CrPC), this Rule was issued calling upon the opposite parties to show cause as to why the Judgment and Order dated 31.01.2017 passed by the District and Sessions Judge, Sylhet in Criminal Revision no. 227 of 2017, allowing the revisional application upon reversing the Order no. 5 dated 16.07.2014 passed by the Additional District Magistrate, Sylhet in Kanaighat Miscellaneous Case no. 21 of 2014 under Section 144 of the CrPC, should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             Succinctly, the fact of the case is that the opposite-party no. 1 of the instant Miscellaneous Case, as the 1st party (hereinafter referred to as the 1st party or complainant), filed a complaint in the Court of Additional District Magistrate, Sylhet alleging, inter alia, that his grandfather was the owner of the schedule land and by way of inheritance, he has been possessing the land by erecting a shop thereon. When the 2nd party-revision respondent-petitioner (thereinafter referred to as the 2nd party) tried to dispossess the 1st party, the latter resisted the former and lodged a General Dairy (G.D.) with Kanaighat Police Station on 13.03.2014. Nonetheless, the 2nd party was persistently threatening to dispossess the 1st party from the shop and, eventually, when the 2nd party forcibly put the shop under lock and key, the police inspected the spot and took the key of the shop house by ousting the 2nd party therefrom. Under the circumstances, the 1st party approached the learned District Magistrate under Section 144 of the CrPC and a case was registered as Criminal Miscellaneous Case no. 21 of 2014. The learned Magistrate on receipt of the complaint directed the local police to inquire into the matter and submit a report. The police, upon inquiry, submitted a report accordingly. Upon hearing both the parties, the learned Magistrate dismissed the said Miscellaneous Case on 16.07.2014 holding that the dispute is civil in nature and that there is no ingredient of Section 144 of the CrPC. Thereafter, on 24.07.2014 the 1st party instituted Title Suit no. 31 of 2014 in the Court of Assistant Judge Court, Sylhet in respect of the case property. During pendency of the above civil suit, the 1st party filed revisional application against the Judgment and Order of the learned Magistrate before the learned Sessions Judge, Sylhet and the same having been registered as criminal revision no. 277 of 2016, was heard and allowed by the learned Sessions Judge, Sylhet through his Judgment and Order dated 31.01.2017 upon reversing the learned Magistrate’s Order no. 05 dated 16.07.2014 passed in Kanaighat Miscellaneous Case no. 21 of 2014. Being aggrieved with the learned Session Judge’s above Judgment and Order dated 31.01.2017, the 2nd party approached this Court invoking its jurisdiction under Section 561A of the CrPC and obtained the instant Rule.

3.             Mr. Mohammad Kamal Hossain, the learned Advocate appearing for the 2nd party-petitioners, takes us through the impugned Judgment and Order dated 31.01.2017 passed by the learned Session Judge, Sylhet in criminal revision no. 277 of 2016 and submits that the same is liable to be quashed on three grounds. Firstly, the learned Session Judge failed to understand the scheme of enactment of the provision of Section 144 of the CrPC, in other words, its scope and mode of application and duration of the operation of an order under Section 144 of the CrPC. Secondly, the learned Session Judge appears to be unfamiliar with the principles laid down by the Apex Court that in entertaining revision application challenging the legality of an order under Section 144 of the CrPC passed by the Magistrate, the revisional Court must be sceptical and unless an ex-facie gross illegality is not shown by the aggrieved party, the revision application should not be entertained as of right, in other words, the learned Sessions Judge failed to comprehend under what circumstances a revision application may be entertained. Thirdly, the learned Session Judge also failed to apply the settled principle of law that when a civil Court is in seisin of the matter relating to title and possession of an immovable property, no order should be passed by any Court with regard to any issue arising out of the said immovable property.

4.             By making the above submissions, the learned Advocate for the 2nd party-petitioners prays for making the Rule absolute.  

5.             Per contra, Mr. Md. Aminul Islam, the learned Advocate appearing for the 1st party-opposite parties, takes us through the Rule-issuing order and submits that the petitioners approached this Court treating the learned Session Judge’s Judgment and Order dated 31.01.2017 to be the Judgment and Order of reversal. In fact, the impugned Judgment and Order is not a Judgment of reversal, he submits. In elaborating his above count of submission, he argues that by the Judgment and Order dated 31.01.2017, the learned Sessions Judge, Sylhet did not reverse the Order no. 5 dated 16.07.2014 passed by the learned Additional District Magistrate, Sylhet in Kanaighat Miscellaneous Case no. 21 of 2014 under Section 144 of the CrPC. Rather, the learned Session Judge affirmed the Magistrate’s Order directing the concerned Officer-in-Charge of the police station (OC) to handover the key of the shop to the 1st party.

6.             By making the above submissions, the learned Advocate for the 1st party-opposite parties prays for discharging the Rule and vacating the order of stay on the operation of the impugned Judgment and Order dated 31.01.2017. 

7.             After hearing the learned Advocates for both the sides and upon going through the annexed papers, namely, the application under Section 144 of the CrPC filed before the Court of the District Magistrate, the Order-sheets of the learned Magistrate, the police report on the above proceedings, the criminal revisional application filed before the learned Sessions Judge, Sylhet and the Judgment and  Order passed in criminal revision no. 277 of 2016 passed by the learned Sessions Judge of Sylhet, it appears to us that the issues to be adjudicated upon by this Court are; firstly, whether the facts stated in the application filed by the first party before the Court of District Magistrate do fit in with the provision of Section 144 of the CrPC or whether those facts better it with fit better in the provision of Section 145 of the CrPC; secondly, upon going through the averments of the application under Section 144 of the CrPC if it is revealed that it was a mere wrong mentioning of a Section of the CrPC in the application, in that case, whether the learned Magistrate was empowered to convert the said application into an application under Section 145 of the CrPC; thirdly, whether the revisional Court is competent to entertain a revisional application after a long lapse of 2 years to examine the legality of the Magistrate’s order passed under Section 144 or 145 of the CrPC regarding disputed possession of any land.

8.             Evidently, the 1st party filed an application before the learned Magistrate invoking the provision of Section 144 of the CrPC and, therefore, it is pertinent to see whether the 1st party invoked the appropriate provisions of law. In order to carry out the said examination, we need to look at the provisions of Section 144 of the CrPC which are quoted below:

144. (1) In case where in the opinion of a District Magistrate, or any other Executive Magistrate specially empowered by the Government or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in a manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte.

(3) An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.

(4) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him or by his predecessor in office.

(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and, if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.

(6) No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Government, by notification in the official Gazette, otherwise directs.

(7) The provisions of this section shall not apply to a Metropolitan Area. (underlined by us)

9.             From a plain reading of Section 144 of the CrPC, it appears that the concerned Magistrate is required to form an opinion to the effect that an urgent measure should be taken in order to prevent an incident which is highly likely to occur and, only then, upon stating the material facts, he may pass necessary direction upon a particular individual or upon the public in general for a maximum period of sixty days. By employing the words “such Magistrate may,----------direct----------”, the Legislature has made it discretionary for the concerned Magistrate to take any action depending on the particular facts and circumstances. Starting from the first judicial pronouncement in the year 1877 on Section 144 (which was Section 518 of the Act X of 1872) by a full Bench of twelve judges in the case of Gopi Mohun Mallick Vs Taramoni Chowdhurani ILR 5 Cal 7, up until now in all the subsequent judgments by the Apex Courts of this sub-continent, including the cases of Satish Chandra Roy and others Vs The Emperor, 11 CWN 79, Bishessur Chukkerbutty and another Vs The Emperor, 20 CWN 758, Rashhebari Singh and others Vs Jagnarain Roy, AIR 1917 Patna 154, Ashutosh Roy and others Vs Harish Chandra Chattopadhya and others 26 CrLJ 874, Ram Narain Sah and another Vs Parmeshar Prasad Sah and other AIR 1942 Patna 414, Taturam Sahu Vs The State AIR 1953Orissa 96, Sri Ram Das Gaur Vs The City Magistrate Varanasi AIR 1960 Allahabad 397, Azahar Khan and others Vs The State 12 DLR (Dacca) 838, Mueez Ali Hatem Ali Vs State 19 DLR(WP) 15, Farid Ahmed Vs Province of East Pakistan 21 DLR 225 and Provat Mondal Vs State 64 DLR 182, it has been sermoned that provisions of Section144 of the CrPC must be strictly construed and only in cases of emergency when there is no alternative remedy for combating the apprehended dangers shall the power under Section 144 of the CrPC be sparingly used, for, the powers granted under the said Section is in derogation of the ordinary civil rights of the citizens.

10.          It would be a profitable exercise to skim through all the provisions of Part IV of the CrPC in quest for its legislative scheme and, thereby, find the appropriateness of invocation of Section 144 of the CrPC, a provision within the said Part IV of the CrPC, in the case in hand.

11.          Part IV of the CrPC consists of Chapters VIII to XIII and the title of the Part IV of the CrPC seeks to highlight that it is concerned with “Prevention of offences”. Chapter VIII, which comprises provisions regarding security for keeping the peace and for good behaviour, has three divisions. In division A, there is Section 106 which provides for requiring security for keeping the peace on conviction. In division B, there are Sections 107 to 119 which provide for enforcement of security for keeping the peace in case of apprehended breach of the peace or disturbance of public tranquility and for keeping the good behaviour, from persons disseminating seditious matters, and also from vagrants, suspected persons and habitual offenders and in division C, there are Sections 120 to 126A which contain provisions relating to proceedings in the aforesaid cases subsequent to the passing of order for furnishing security. Then comes Chapter IX which consists of Sections 127 to 132 and deals with unlawful assemblies and the next Chapter, Chapter X provides for prevention of public nuisance. Chapter XI, which comprises Section 144, has made provision for making temporary orders in urgent cases of obstruction, annoyance or injury to any person or danger to human life or health, disturbance of public tranquility, riot or affray. The first portion of the operative part of sub-Section (1) of Section 144 provides for prevention of nuisance and the second portion provides for prevention of danger to human life, health or disturbance of the public tranquility, riot or affray. Chapter XII comprising Sections 145 to 148 provides for prevention of breach of the peace arising out of disputes relating to immovable property and Chapter XIII, consisting of Sections 149 to 153, deals with the action of the police for preventing the commission of any cognizable offence.

12.          From the perusal of the Part IV of the CrPC, we can see that Part IV of the CrPC sequentially incorporates the detailed provisions for prevention of the commission of certain offences. And from the heading of the Chapter XI of the said part IV (Temporary orders in urgent cases of nuisances or apprehended danger), within which the solitary provision of Section 144 is placed, we find the scheme of enactment of Section 144 of the CrPC; and the said scheme is that the Magistrates should use their powers under Section 144 of the CrPC only in exceptional circumstances upon judiciously considering the report, information and the situation that prevails at the relevant point of time; they should not see their duty under this provision as a mere routine work. To understand the above provision in a simpler version all that we wish to record is that the standard measures, which may be more or less permanent in nature, for prevention of any disturbance of the public peace and tranquility or public nuisance have been provided in Chapters VIII, X & XII, and Chapter IX embodies provisions for taking measures for dispersal of any unlawful assembly or any assembly of five or more persons likely to cause disturbance of the public peace. When resorting to the means available in Chapters VIII, X or XII may not be viable; only in that urgent situation; a Magistrate is invested with jurisdiction to exercise powers under Chapter XI.

13.          By reverting to the facts of the present case, as stated in the complaint filed before the Magistrate Court, any one with ordinary prudence would be of the view that the dispute having arisen out of a landed-property and being remained unresolved for considerably a long period, remedy under Section 144 of the CrPC, which would last for maximum sixty days only, was not suitable to resolve the issue among the contending parties in the backdrop of availability of more effective provisions within Part IV of the CrPC and, more importantly, the situation was not serious or vulnerable enough to warrant bypassing the normal expedient as provided in other Chapters of Part IV of the CrPC for ‘prevention of offence’, namely Chapters VIII, X & XII to XIII. The foregoing discussions, thus, lead us to hold that the approach of the first party before the Court of District Magistrate through filing an application under Section 144 of the CrPC was misconceived.

14.          The above resolution takes us to see whether the learned Magistrate ought to have treated the said approach to be one under Section 145 of the CrPC. To this end, let us look at the provisions of Section 145 of the CrPC which are reproduced below:

145. (1) Wherever District Magistrate, or an Executive Magistrate specially empowered by the Government in this behalf is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute, to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute,

(2) For the purposes of this section the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property,

(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: 

Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:

Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

(6) If the Magistrate decides that one of the parties was or should under the first proviso to sub-Section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-Section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at may stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107. (underlined by us)

15.          From the reading of the above provisions, we find that object of Section 145 is the prevention of incidents likely to arise out of the disputes over possession of an immovable property resulting in breach of peace. Under the scheme of this provision, the concerned Magistrate, upon coming to know through police report or otherwise as to the likelihood of breach of peace over a land regarding its actual possession, must satisfy himself about the alleged likelihood of breach of peace. In order to be satisfied, the Magistrate should minutely examine the police report or information received through other source. After judiciously considering the police report or other information if the Magistrate is satisfied that there exists a circumstance which is risky for the contending parties and people in general, then it becomes a bounden duty for the Magistrate to make a written order in view of the employment of the word “shall”(he shall make an order in writing). This is popularly known as preliminary order. This preliminary order must contain the reasons of the Magistrate’s satisfaction, the nature of the order; meaning that whether the Magistrate is going to merely ask the contending parties for hearing on the alleged disputes or whether the order is going to be passed in the form of injunction for maintaining peace on the disputed land upon attaching the property by appointing a receiver.

16.          Once the Magistrate decides to pass any order as mentioned above, the same must contain the directions upon the parties to prove their respective claims by filing written statements within a fixed time either in person or through their pleaders. The  Magistrate, thereafter, upon perusing their statements, hearing the parties and considering the evidence, would come to a decision on the possession of the property with a finding as to whether any or which of the parties was in possession. If it is surfaced that any party was dispossessed within any date of last two months from the date of preliminary order, then the dispossessed party may be restored to its possession upon declaring the said party to be the lawful possessor of the property until evicted therefrom by the order of a competent Court.

17.          Upon examining the entire part IV of the CrPC, which has been carried out hereinbefore, we find the provisions of the Chapter XII of the CrPC comprising of Sections 145 to 148 thereof to be applicable in this case. To be more specific, we find that Section 145 of the CrPC matches with the facts of this case and, accordingly, it was incumbent upon the learned Magistrate to treat the first party’s application under Section 145 of the CrPC, for, the first party and his lawyer had wrongly mentioned the Section in their application.

18.          We may now proceed to see whether the revisional Court was competent to admit the revisional application after two years of passing the order by the learned Magistrate. It transpires that when the proceeding under Section 144 of CrPC was disposed of by the learned Additional District Magistrate, Sylhet in Miscellaneous Case No. 21of 2014 on 14.07.2014, the first party upon happily accepting the learned Magistrate’s said order dated 16.07.2014 instituted Title Suit No. 31 of 2014 on 24.07.2014 in the Court of Assistant Judge, Sylhet seeking permanent injunction. Then, the criminal revisional application was filed before the Court of learned Session Judge of Sylhet after a long lapse of 2 years; in the year 2016. It, thus, appears to us that while the opposite party no.1 was in the competent forum seeking adjudication of all the disputes relating to and arising out of the title and possession of the disputed shop, approaching the Sessions Judge through filing criminal revision for adjudication of an ancillary issue arising out of the said disputed shop was completely misconceived. The first party, at first, could have filed an application before the Court of learned Assistant Judge for injunction upon the second party if the former is in possession of the case land. However, if there existed/still exists a real danger of breach of peace, in that event, the first party was/is well competent to file application under Section 145 of the CrPC to the District Magistrate despite pendency of the civil suit and the Magistrate is competent to pass appropriate order exercising his power under Section 145 of the CrPC, provided that civil Court in the mean time has not passed any order regulating the possession of the case land. More so, the Magistrates and the police having been made responsible for maintaining the public peace and the proceedings under Section 144 and 145 are of special nature having allowed the Magistrates greater liberty in carrying out their functions under Chapter IV of the CrPC than they are allowed in trying ordinary crime, unless an aggrieved party promptly and diligently challenges the Magistrates’ order under Section 144/145 of the CrPC on the ground that it has been passed without jurisdiction or exfacie unreasonable and unjust, the said order should not be interfered with in revisional jurisdiction.    

19.          The above analysis on the facts of the case in tandem with the relevant provisions of law lead us to hold that the 1st party was supposed to approach the Magistrate afresh under Section 145 of the CrPC if there truly existed any likelihood of breach of peace, even after 2 years of passing the order by the Magistrate on 16.07.2014. But the 1st party approached the Court of learned Sessions Judge and that too also without disclosing the fact that he has already approached the civil Court following the dismissal of his application under Section 144 of the CrPC by the learned Magistrate vide his Order dated 16.07.2014. We find that the filing of the revisional application before the Court of the Sessions Judge without mentioning about the institution of civil suit in respect of the selfsame matter and thereby obtaining the Judgment and Order dated 31.01.2017 impugned in this Rule demonstrates the malafides of the first party. Had the information as to institution of civil suit on the selfsame matter been placed before the Sessions Judge in course of adjudication of Criminal Revision no. 277 of 2016, he may not have entertained the above revisional application without being satisfied as to non-invocation of Section 144 or 145 of the CrPC before the District Magistrate afresh. Therefore, entertainment of revisional application after such a long period of two years by the learned Sessions Judge, Sylhet without judiciously scrutinizing the facts as to whether any civil suit is pending over the disputed property appears to us to be a fatal failure of the learned Sessions Judge causing failure of justice and, hence, the same is liable to be quashed for ends of justice.

20.          From the above discussions it is vividly clear that whether the order passed by the learned Additional District Magistrate, Sylhet in Kanaighat Miscellaneous Case no. 21 of 2014 under Section 144 of the CrPC was reversed or affirmed by the learned Sessions Judge of Sylhet, as agitated before us by the learned Advocate for the first party, is not any issue for adjudication by this Court. From the averments of the revisional application all that this Court understands is that the denial of the OC of Kanaighat Police Station for handing over the Key of the shop, even after lapse of about 2 years, prompted the 1st party to approach the Court of Sessions Judge with an expectation to get an order on obtaining the key of the disputed shop.

21.          Accordingly, the Judgment and Order dated 31.01.2017 passed by the learned District and Sessions Judge, Sylhet in Criminal Revision no. 227 of 2017 allowing the revisional application by reversing the Order no. 5 dated 16.07.2014 passed by the Additional District Magistrate, Sylhet in Kanaighat Miscellaneous Case no. 21 of 2014 under Section 144 of the CrPC is hereby quashed.

22.          Before parting with this Judgment, we feel it pertinent to observe that in these days the learned Sessions Judges are entertaining criminal revisional applications against the order/s under Section 144/145 of the CrPC passed by the learned District/Executive Magistrates as a matter of course without first being satisfied as to whether the Magistrate’s decision is grossly erroneous or without jurisdiction or exfacie  unreasonable and unjust and, consequently, this Court is being inundated with a huge number of cases under Section 561A of the CrPC seeking quashment of the   learned Session Judges’ Judgments and Orders on the proceedings under Sections 144/145 of the CrPC. In view of the prevailing tendency of the learned Sessions Judges, this Court as part of its duty under Article 109 of the Constitution, passes the following directions upon the learned Sessions Judges of the country to be followed in dealing with the criminal revisional applications concerning the provisions of Sections 144/145 of the CrPC.

(1)    The learned Sessions Judges must check the fact as to whether the aggrieved party has moved before the revisional Court promptly; if there is a long delay in filing revisional application, whether categorical and plausible explanations have been furnished for the satisfactions of the revisional Court.

(2)    The learned Sessions Judges shall minutely examine the averments of the revisional application to see whether any civil suit with regard to the disputed property is pending before any competent Court. If the application states that a civil suit is pending over the same dispute, then the learned Sessions Judge must be sceptical in entertaining the revisional application unless the situation appears to be so vulnerable that it warrants the interference of the learned Sessions Judge.

(3)    The learned Sessions Judges at the time of entertaining the revisional applications must be satisfied that the Magistrate has committed gross illegality in passing the order under Section 144 or 145 of the CrPC.

23.          In line with the above directions passed upon the learned Sessions Judges, it would be useful to lay down guidelines for the learned Magistrates as well. The learned Magistrates should note that though an aggrieved party is at liberty to approach the Court of District Magistrate at any point of time invoking the jurisdiction of the District Magistrate under Section 144 or 145 of the CrPC during pendency of a civil suit in which no order as to possession of the disputed property has been passed by the civil Court, it is incumbent upon the learned Magistrate to inquire into the fact as to whether there is any civil suit pending over the same property and once the Magistrate comes to know about the pendency of the civil suit regarding the disputed property, his first duty is to direct the aggrieved party to obtain an injunction from the civil Court; if it appears to the Magistrate that the situation is so risky that an incident of breaching the peace in the area is likely to occur, the Magistrate then becomes competent to pass necessary order/s under Section 144/145 of the CrPC.

24.          To this end, it is worthwhile to note that the learned District and Executive Magistrates now-a-days are dealing with the cases under Sections 144/145 in a slipshod manner without properly applying the provisions of the above law. Their failure to judiciously deal with the proceedings under Sections 144 & 145 of the CrPC culminates into filing of criminal revisional application before the Court of learned Session judges. This is happening due to the fact that the learned District and Executive Magistrates of the country do not get proper training for being acquainted with the provisions of Sections 144 and 145 of the CrPC. Therefore, the Director General of the Bangladesh Institute of Administrative Management (BIAM) is directed to introduce a short course for the learned Additional District Magistrates on the provisions of Sections 144 &145 of the CrPC.

25.          In the result, the Rule is made absolute with the above observations and directions. However, there shall not be any order as to costs.

26.          Office is directed to send a copy of this judgment to the Registrar General of the Supreme Court of Bangladesh who shall disseminate the same to all the learned Sessions Judges of Bangladesh. Office is further directed to send a copy to the DG of the BIAM at New Eskaton Road, Dhaka for his perusal and necessary action.

Communicate this judgment at once.

End of Volume.



Criminal Miscellaneous Case No. 6037 of 2017.