ORDER
Pradip Kumar Biswas, J.
1. This is an application under Section 482 of the Code of Criminal Procedure filed at the instance of Monoharlal Dutt, petitioner herein, seeking to quash the proceeding in M.P. Case No. 774 of 2002 pending before the Ld. Executive Magistrate, Howrah (Sadar) under Section 133 of the Code of Criminal Procedure.
2. The short facts leading to the filing of this revisional application are as follows :
The petitioner herein had purchased the plot No. 1130 and other 14 plots of lands mentioned in paragraph 1 of his application of Mouza — Sulati. P.S. Sankrail, Howrah by virtue of various valid deeds of conveyance.
3. It has further been alleged that the wife of this petitioner Smt. Krishna Dutt is the absolute owner of Plot Nos. 529. 1203 and 1225 of Mouza Sandipur, P.S. Sankrail, Howrah by virtue of her purchase by diversed deeds.
4. It has further been alleged that after their purchase, the petitioner developed the said plot, of land and those have been divided into different plots for the purpose of conveyance to the prospective buyers as the marketable plots and in course of development of those plots, the petitioner built a private road in those plots for the purpose of exclusive use of the petitioner and other prospective buyers, who may purchase plots from the petitioner in respect of the aforesaid plots.
5. It has further been alleged by the petitioner that the said road was never used as public road or public path-way for outsiders and this was meant for exclusive use of the petitioner and other purchasers purchasing plots of land from the petitioner in respect of the aforesaid lands.
6. On or about 2000, one M/s. Lagas Overseas Pvt. Ltd. a private limited company purchased a plot of land in the neighbouring petitioner’s land from different persons and M/s. Lagas Overseas Pvt. Ltd. however, did not purchase any land from the petitioner or any plot from the petitioner’s land as such they had no right to use the private road which is meant for the exclusive user of the petitioner and/or his purchasers.
7. With ulterior motive, the aforesaid Lagas Overseas Pvt. Ltd. has filed a civil suit being Title Suit No. 128 of 2001 against the petitioner before the Court of Ld. Civil Judge, 5th Court, Junior Division, Howrah praying for a decree for permanent injunction and with other reliefs and the aforesaid Lagas Overseas Pvt. Ltd., took out an interlocutory application, inter alia, praying for an injunction restraining the petitioner from obstructing their right of using passage over the petitioner’s land.
8. The Ld.Civil Judge, 5th Court Junior Division, Howrah by an order dated 12-6-2001 declined to grant and ad interim order of injunction to the said M/s. Lagas Overseas Pvt. Ltd. and issued notice upon the petitioner to file show cause in the aforesaid injunction application and the next date for hearing was on 18-6-2002 and the present petitioner duly appeared in the said suit and had contested the same.
9. Now, having failed to obtain an ad interim order in its favour in the civil proceeding, the opposite party No. 2 has taken out an application under Section 133 of the Code of Civil Procedure against the petitioner claiming, inter alia, for an order for removal of iron gate and wall fixed and erected over alleged passage.
10. It has further been alleged by the petitioner that from the inception of the private road, there was an iron gate and a wall constructed in order to prevent the entry of outsiders other than the petitioner and or purchaser of various plots from the petitioner.
11. The Ld. Executive Magistrate by an order dated 26-3-2002 called upon Officer-in-Charge, Sankrail Police Station to submit a report in the said proceeding and directed that the petitioner to appear before the said Court and to submit explanation as to alleged encroachment of the suit land.
12. On the next date of hearing i.e. on 9-4-2002, a report the B.D.O. Sankrail, Howrah was found in the records of the learned Executive Magistrate in the aforesaid case, although, no such report, has been called for by the Ld. Magistrate and that being the position, the aforesaid report clearly aline to the said proceeding and could not have been treated as a part of the record.
12A. It has further been alleged that from a perusal of the purported report of the B.D.O., Sankrail, Howrah, it was revealed that the purported enquiry was made at the behest of one Gautam Roy and Others, and the same is in no way related to the instant proceeding and, therefore, such a report in connection with different proceeding cannot be used in another proceeding to come to a finding against the present petitioner. It has also been alleged that such enquiry was held behind of the back of the petitioner and his wife who were/are the absolute owners of the aforesaid plots of land and such purported report of B.D.O. has been fabricated without giving an opportunity to the present petitioner and his wife for any hearing.
13. It has further been alleged that the petitioner appeared before the concerned Court on 18-4-2002 and prayed for time for hearing in the matter, but the Ld. Executive Magistrate by impugned order dated 18-4-2002 rejected the prayer of the petitioner and directed him to remove the obstruction made by him immediately in one hand and on the other hand directed him to show cause within fortnight of the order and for recording such order, there has been procedural illegality in the impugned order and since the petitioner has denied the existence of public path-way in the land in question, it was beyond the jurisdiction of the Ld. Magistrate to pass any sort of conditional order for removal of alleged encroachment immediately without holding an enquiry under the provision of Section 138 of the Code of Criminal Procedure.
14. The petitioner has alleged therefore that the impugned order dated 18-4-2002 is illegal and without jurisdiction and the same has been passed usurping the jurisdiction of the civil Court and as such the continuation of the impugned proceeding, in respect of the alleged obstruction which is there for a considerable period of time and which is the subject matter of the civil proceeding, will be regarded as an abuse of the process of the Court and hence, this prayer as mentioned in the outset.
15. From the side of the Opposite Party No. 1 State of West Bengal, it has been contended that the Learned Magistrate is absolutely within his competence to pass any conditional order requiring the person causing such obstruction or nuisance to remove the same since Section 133 of the Code provides a speedy and summary remedy in case of urgency where danger to public interest or public health etc. is concerned. The idea behind this is that if immediate steps are not taken, irreparable injury may be caused.
16. It has further been contended on their behalf that here acting on the report of the B.D.O., Sankrail, the Ld. Executive Magistrate has passed the aforesaid order and the report itself, specially the Paragraph 2 has clearly made out that a road which comes from NH 6 to the plots of Lagas Beltech Pvt. Ltd. was used by the public as common right of easement and the road is now obstructed by one M.L. Dutta and others by constructing a gate who, purchased the lands and used to sell it stall now to different proprietor of Industries and in paragraph 7, it has been clearly opined that the road obstructed by M.L. Dutta and Others should be opened permanently as the road is the common right of casement for the factories and the inhabitants of the area. So, according to them there is infringement of the mandatory provision of the law for which interference is necessary.
17. Other O.P. party also advanced their argument in the same line.
18. I have heard the parties at length and perused the available materials on record. Sri Sekhar Bose, the learned Advocate appearing for the petitioner, drawing my attention to a decision in the case of Matabbar Molla v. Golam Panjaton has submitted before me that where there is an allegation that the accused is alleged to have obstructed a public pathway, and on receipt of notice of the proceedings under Section 133, he appears in Court, the first duty of the Magistrate is to question him whether he denied the existence of public right in the pathway. If instead of doing so the Magistrate proceeds to enquire into the matter whether there was any obstruction, the procedure is wrong in law.
19. With reference to the aforesaid decision, drawing my attention to the impugned orders dated 26-3/9-4/18-4-2002, it has been submitted by Sri Bose that by Order dated 26-3-2002, direction was issued to call for a report from O.C., Sankrail P.S. and the direction was also issued therein upon the Opposite Party No. 1 i.e., the petitioner herein to appear before that Court i.e., on 9-4-2002 and submit explanation as to the alleged encroachment of the suit land.
20. Taking through the order dated 9-4-2002 it was shown that the report from B.D.O. , Sankrail was put in and on prayer another date was fixed on 18-4-2002 for hearing, but on that day i.e. 18-4-2002 without asking any question to the present petitioner, whether he denies any existence of public right in the alleged pathway, the Magistrate placing his utmost reliance on the report of B.D.O., Sankrail came to the finding that ‘the O.P. has obstructed the common passage on Dag Nos. 528, 529 of Mouza Sandhipur and the Dag No. 1203, 1204, 1207, 1208, 1213, 1214, 1216, 1217, 1130 and 1242 of Mouza Sulati in P.S. Sankrail and caused immense hardship to the petitioner as well as the public and came to the further “finding that the obstruction caused by the O.P. requires to be removed immediately” and on being satisfied with the report of the B.D.O., he drew up a proceeding under Section 133 of Cr.P.C. against the O.P., and directed him to remove the obstruction and by the same order he has directed the O.P., i.e., present petitioner to show cause within a fortnight from the date of the issuance of the order and at the same time, the Ld. Magistrate directed the O.C., Sankrail to ensure that peace is maintained over the issue strictly and to ensure further that removal of obstruction is made by the O.P. immediately.
21. Sri Bose drawing my attention to a case reported in 2000 Cal Cr LR 121 in the case of Kajal Das v. Netai Chandra Paul and specially the ratio decided therein has submitted before me that although in the instant case, the report was called for by the concerned Magistrate from O.C., Sankrail P.S., but placing reliance upon the report of the B.D.O. Sankrail, the impugned order has been passed in the present proceedings and that report was submitted by the B.D.O. Sankrail in relation to the petition of one Sri Goutam Roy and others so it has been submitted on behalf of the petitioner that the Ld. Magistrate was not justified in placing reliance on the aforesaid report in connection with the present case as the said report is certainly alien to the connected matter.
22. In connection with the above, it has further been contended by Sri Bose that O.P. No. 2 having taken steps to file a civil suit for redressal of his grievance in relation to the suit passage, he should not have been allowed again to take recourse to the provision of Section 133 of Cr.P.C. to evict a person from his lawful possession and one should avoid making use of the provision as a substitute for enforcement of private right and it is more so, when such alleged obstruction/nuisance is an old one and, therefore, the present, matter, in all fairness, should have been decided by a civil Court to reach to a finality and the provision of Section 133 of Cr.P.C. is not intended to be applied in such cases to avoid the jurisdiction of the civil Court since, the O.P. No. 2 was unsuccessful in securing a interlocutory order of injunction in a suit instituted by and on behalf of them. So, the present proceeding under Section 133 of Cr.P.C. cannot be allowed to be proceeded with as a substitute in the fact situation of the present case when they themselves approached the civil Court for redressal of the grievance.
23. Placing reliance on the aforesaid decisions and 2000 Cal Cri LR 121 (supra), it has been contended by Sri Basu that in the instant case, there has been clear departure from the established procedure of law and the Ld. Magistrate has acted upon a report in relation to another proceeding in violation of the principle of natural justice and also in violation of mandatory requirement of law by not asking a question to the present petitioner with regard to the existence or otherwise of public right in the alleged pathway and the opposite party No. 2 should not have been allowed to take recourse to the provision of Section 133 of Cr.P.C. to evict a person from lawful possession by way of making use of the provision under Section 133 of Cr.P.C. as a substitute for enforcement of his private right in a situation, when he has failed to secure the relief by approaching the civil Court.
24. In opposing the aforesaid contention of the petitioner, it has been submitted on behalf of the State/O.P. through Mr. Kaji Safiulla, Ld. P.P. High Court that the Learned Magistrate, on being satisfied upon the materials available and as per the provisions of law as enjoined under Section 133 of the Cr.P.C. which empowers the Magistrate to make a conditional order for the removal of such public nuisances in emergent cases, has passed the impugned order and his action cannot also be regarded as faulty one since the learned Magistrate although issued conditional order, yet, he has also given an opportunity to the present petitioner to file show cause. So, no exception could be taken with regard to the impugned order itself of the civil suit will not be regarded as a bar in getting appropriate relief under Section 133, of Cr.P.C. inasmuch as the same is awarded in an exceptional circumstance and empowers the Magistrate to make a conditional order for the removal of public nuisances in emergent cases.
25. Other O.Ps. appearing in this case also supported the contention of Mr. Safiulla.
26. I have carefully, examined the rival contentions of the parties with reference to the provisions of Section 133 of the Cr.P.C. and other allied provisions of the Criminal Procedure Code. The proceedings, as it appears under Section 133 take the following order :
27. Depending on the circumstances, the Court is entitled to issue conditional ex parte order as per provisions of Section 133(1): and as per the provisions of Section 134, of Cr.P.C., service or notification of the order is to be made; in case of urgency. Magistrate is authorised to pass an order of injunction pending enquiry as per Section 142 of Cr.P.C. Upon service or notification of the order, person against whom such order is made shall either obey or show cause as per the provisions of Section 135 of Cr.P.C. and if the person does not appear, the order is made absolute and in appropriate cases for violation of such order he is liable under Section 188 of the Indian Penal Code as per the provisions of Section 136 of Cr.P.C. If on receipt of such order or notification, he appears or shows cause against the order, then the Magistrate shall, on the appearance before him of the person against whom the order was made, first question him as to whether he denies the existence of public right and if the answer is in the affirmative, it is for him to adduce evidence and if upon enquiry the Magistrate finds that there is reliable evidence in support of such evidence, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court, and if he finds that there is no such evidence, be shall proceed as per the provisions of Section 138 of Cr.P.C. or in other words if it is decided by the Magistrate that the claim is not well founded, the evidence is taken and the conditional order is made absolute or the proceedings are dropped in appropriate case. If the order is made absolute after the enquiry, the Magistrate may proceed to enforce it as enjoined in Section 141, of Cr.P.C.
28. But, here in this particular case, looking into the materials available, specially from the orders dated 9-4-2002 and 18-4-2002, it appears to me that the Ld . Magistrate on the appearance of the O.P. that is the petitioner herein, never questioned him whether he denied the existence of public right in the pathway or not and instead of doing that he proceeded to enquire into the matter and passed conditional order placing reliance on a report of the B.D.O., Sankrail, obtained in connection with another case without waiting for the report called for by him from the O.C., Sankrail P.S.
29. That being the position, upon assessing the available materials, I am prompted to hold and find that the procedure adopted by the Ld. Magistrate in connection with the present proceeding under Section 133 of Cr.P.C. was absolutely wrong in law and it also violates the ratio decided by the aforesaid two decisions (supra).
30. Accordingly, the order passed by the Ld. Magistrate making order under Section 133 of the Code of Criminal Procedure, precisely the order dated 18-4-2002 cannot at all sustain and the same therefore, needs to be set aside.
31. Now, in view of what I have stated above and upon ultimate analysis of the materials, I find that the impugned order dated 18-4-2002 should be set aside.
32. In the result, the revisional application succeeds and the same is hereby allowed. The impugned order dated 18-4-2002 passed by the Ld. Executive Magistrate (Sadar) is hereby set aside.
33. This will not, however, preclude the Ld. Magistrate to proceed in the matter afresh against the present petitioner in accordance with law and also after complying with the mandatory requirement of law, as discussed above and after giving an opportunity to the parties of being heard.
34. Thus, the matter is accordingly disposed of.
Urgent Xerox certified copy, if applied for, be made available to the parties expeditiously as possible.