Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Material Supression of Fact in a Criminal Case

G. ARAVINTHAN ,
  18 September 2008       Share Bookmark

Court :
Supreme Court of India
Brief :
A. Criminal Procedure Code, 1973 – Section 144- Dispute between landlord and tenant – Validity of order passed by Executive Magistrate restraining tenant from entering premises – Landlord’s application under section 144 for possession of premises- report of police shows that respondent/ landlord entered into the premises at midnight by breaking open the lock of tenant – Inspite of interim order passed by court directing respondents to maintain status quo ante – Possession of premises had not been handed over to petitioner- Executive Magistrate passed impugned order solely on basis of averments made in application under section. 144 of Cr. P.C. – Impugned order stands se aside and quashed (Paras 41, 42) B. Constitution of India, 1950 – Art, 226- Material suppression of fact- what constitute –Dispute between landlord and tenant – Civil suit was filed by tenant / petitioner for permanent injunction restraining respondent/land lord from entering into premises- suit was not in respect of order impugned passed by executive Magistrate restraining tenant from entering into premises in proceeding under section. 144 Cr. P.C. – Question raised in present writ proceeding is legality and propriety of impugned order- Non mentioning of filing suit which has no relation to impugned order- Is of no consequence so as to constitute material suppression of fact. (Para 18)
Citation :
2007 Criminal Law Journal 2700
This writ petition is directed against the proceeding initiated by the Addl. District Magistrate, Nagaon under S. 144, Cr. P. C. and the order passed therein. Further prayer made is for return of the shop premises in question from which the petitioner was allegedly dispossessed pursuant to the order in the said proceeding.

2. Shortly stated, the facts leading to the filing of the instant writ petition are that the petitioner's elder brother Dr. (Late) Ajit Kr. Das was the tenant of a shop premises under the landlord, the father of the respondent No. 5. Since 1954 (1-11-54) the shop premises is under Municipal holding No. 223 of Ward No. XV of Nagaon Municipal Board and was made use of for the purpose of business of medicine under the name and style of M/s. Radha Govinda Pharmacy which was later on renamed as M/s. Radha Govinda Medical Hall. Said Dr. Das expired on 15-1-86 and by virtue of family settlement, the petitioner had been looking after the management/affairs of the said Pharmacy and he had been using the same as tenant by making necessary payment of rent, tax etc.

3. The respondent No. 5 who inherited the property from his father including the shop premises filed an application under S. 144, Cr. P. C. before the Addl. District Magistrate, Nagaon on 27-3-2002 against the petitioner with the prayer for an order directing the petitioner not to enter into the shop premises. Be it stated here that the shop premises as described in the schedule to the application is in the land measuring 15 ½ lechas in P. P. No. 1417, Dag No. 2686/ 2687 of Nagaon Town. As noticed above, the shop premises is with holding No. 223 in Ward No. 15 of Nagaon Municipal Board.

4. As per the averments made in the said application, the respondent No. 5, i.e. the first party to the aforesaid proceeding under S. 144, Cr. P. C. which was registered as M. R. Case No. 180/2002, is the absolute owner of the land described in the schedule to the application. It was stated in the application that he had inherited the property from his deceased father by right of inheritance and succession. Further statement made in the application is that the second party, i.e., the present petitioner is a trespasser and has no connection with the said land described in the schedule and that he has tried to take possession of the land as he was a tenant. Further statement made in the application is that the second party was trying to obstruct and dispossess the first party, i.e. the respondent No. 5 from his parental land and as such there is apprehension of public peace and tranquility in the area.

5. On the basis of the said application with prayer indicated above, the Additional District Magistrate, Nagaon (Sr. Division), Mr. P. C. Deka passed the impugned order dated 27-3-2002, recording his purported satisfaction that the second party, the petitioner, tried to enter into the land of the first party, the respondent No. 5, forcibly and thereby caused serious apprehension of breach of peace. On the basis of such satisfaction, he drew up a proceeding under S. 144, Cr. P. C. with the direction to the second party/petitioner not to enter into the land mentioned in the schedule. The direction was also issued to the jurisdictional police officer to take action accordingly.

6. According to the petitioner, after the aforesaid ex parte prohibitory order passed by the ADM, the respondent No. 5 along with other family members committed house trespass at midnight between 27-3-02 and 28-3-02 by breaking open the locked doors of the aforesaid shop premises, caused damage to valuable medical apparatus, furniture’s and other valuable properties and also destroyed valuable documents like trade licence, drug licence, payment receipts etc. On getting the information of such wrongful entry of the respondent No. 5 to the shop premises of the petitioner, he lodged an FIR with Nagaon P. S. However, the same was refused to be accepted on the ground that the respondent No. 5 has entered into the shop premises on the strength of the order passed by the ADM in the proceeding under S. 144, Cr. P. C. Thereafter, the petitioner preferred a revision petition before the learned Sessions Judge, Nagaon which was registered and numbered as CM No. 40(N)/ 2002. The revision application was preferred against the ex-parte order passed by the ADM on 27-3-02. The revision application was entertained by order dated 30-3-02 and as an interim measure, the impugned order was suspended. However, in spite of such interim order, the possession of shop premises was not restored to the petitioner. Situated thus, the petitioner prayed for withdrawal of the revision application and the same was dismissed by order dated 26-4-02.

7. The petitioner who is also the member of the Nagaon Bar Association, brought the matter to the notice of the Bar Association by his representation dated 1-4-02 as to how he has been dispossessed from the shop premises on the strength of the ex-parte order passed in the proceeding under S. 144, Cr. P. C. According to him, in spite of receipt of the FIR lodged on 28-3-02, the police did not take any action in the matter. Situated thus and having no other alternative, the petitioner invoked the writ jurisdiction of this Court under Arts. 226/227 of the Constitution of India for setting aside and quashing of the impugned order dated 27-3-02 passed in M. R. Case No. 180/02 and for restoration of possession of the shop premises.

8. The writ petition was entertained by order dated 3-5-2002 and noticing the allegations made against the respondent No. 4, i.e. the Officer-in-charge, Nagaon P. S., a direction was issued to inform the Court as to what action was taken on the FIR lodged by the petitioner and the investigation of the case. It was also provided that the respondent No.2, i. e. the Director General of Police, Assam would oversee the action of the respondent No.4 and ensure that the report as called for was submitted on the next date fixed. It was indicated in the order that on the next date fixed appropriate interim order would be passed. By order dated 16-8-2002, this Court directed the parties to maintain status quo ante as on 28-3-2002 with liberty to the respondents to approach
this Court for vacation and variation and/ or cancellation of the order so passed.

9. The report which was called for by order dated 3-5-2002 was never submitted by the respondent No.4 and noticing that this Court by order dated 30-6-2005, directed the Officer-in-Charge, Nagaon P. S. to submit the report. Even thereafter also, the report has not been submitted. Further direction was issued on 30-5-2006 for production of the report.

10. When the report was not produced, this Court by order dated 17-8-2006 directed for production of the entire records pertaining to Nagaon P. S. Case No. 193/02. It will be pertinent to mention here that although no report was furnished by the respondent No.4 pursuant to the direction of this Court, but in the affidavit-in-opposition filed by the respondent No. 6, i.e. the Sub-Divisional Police Officer, it has been revealed that on the basis of the FIR lodged by the petitioner, Nagaon P. S. Case No. 193/02 was registered under Sections 451/427/380/34IPC. The affidavit has also revealed that the said Police case ended in final report.

11. The respondent No.5 who was the first party in the aforesaid 144 Cr. P. C. proceeding, has filed two affidavits-in-opposition. The respondent No. 6 has also filed affidavit-in-opposition. In the first affidavit filed by the respondent No. 5, the fact that the brother of the petitioner Dr. Ajit Kr. Das was a tenant of the shop premises, has been admitted. It has been stated that the petitioner tried to dispossess the respondent No.5 from the shop premises and consequently he had to approach the ADM for appropriate relief. According to him he was residing in the residential house just back side of the shop premises. He has denied that he had entered into the shop premises by breaking open the lock and has committed any house trespass in the midnight between 27-3-2002 and 28-3-2002. In the affidavit, the respondent No.5 has also referred to the aforesaid revision petition filed by the petitioner as well as a title suit filed by him 'before the Civil Judge (Jr. Division) No. l, I Nagaon registered and numbered as Title Suit No. 30/02. According to the respondent No.5, the petitioner has suppressed the fact of filing the title suit and thus, the writ petition is liable to be dismissed on that score alone. Further contention raised in the affidavit is that, since the dispute between the parties is a civil dispute, same cannot be resolved through the writ petition.

12. In the additional affidavit filed by the respondent No.5, it has further been contended that the title suit referred to above was pending before the Civil Judge (Sr. Division) No. 2 at Nagaon and this fact was suppressed by the petitioner while filing the writ petition. However, the same has been withdrawn on 9-1-2003.

13. In the affidavit filed by the respondent No. 6, i.e. the SDPO, who was the Officer -in-Charge of Nagaon Police Station at the relevant point of time, it has been stated that the FIR lodged by petitioner received due attention and the matter was enquired into by entrusting the same to the Officers of Nagaon P. S. and that Nagaon P. S. Case No. 193/02 was registered under Sections 451 /427/380/34IPC and after appropriate investigation final report was submitted as it was found to be a civil dispute.

14. Amidst the aforesaid pleadings of the parties, the moot question for consideration is, as to whether the petitioner was dispossessed from the shop premises on the strength of ex-parte order passed in the proceeding u/S. 144 Cr. P. C. and as to whether the ADM, Nagaon was justified in passing the impugned order dated 27-3-2002. It is also to be considered as to what would be the consequence of taking recourse to by the petitioner firstly to revisional jurisdiction of learned District and Sessions Judge, Nagaon and secondly by filing the title suit, both subsequently withdrawn.

15. Mr. P. K. Roy choudhury, learned counsel for the petitioner referring to the interim order passed submitted that in terms of the said orders the possession in respect of the shop premises ought to have been restored, but the respondents with the active help of the respondent No. 4 did not care to obey the order of this Court even to the extent of not furnishing the report as directed by this Court. Emphasizing the need for the procedure to be adopted and followed by an Executive Magistrate initiating the proceeding under Section 144 Cr. P. CM he submitted that the ADM, Nagaon could not have passed the impugned order dated 27-3-2002 which facilitated they entry into the shop premises by the respondent No. 5. He has placed reliance on the following decisions :

(1) AIR 1981 SC 2198 : (1981 Cri LJ 1835) Gulam Abbass v. State of U. P.)

(2) (1976)2 SCC 152) (Gurucharan Singh v. Kamla Singh)

(3) AIR 1985 SC 796 (Gain Devi Anandi v. Seevan Kumar)

(4) (2000)3 GLR 59 :(AIR 2000 Gau 26) (Banwarilal Kejriwal v. Sujjan Kumar Jalan)

(5) 1991 Crl. L. J. 3156 (Gau) (Pranab Kumar Chakraborty v. Mohammad Akram Hussain)

(6) AIR 2002 SC 1152 (S. R. Ejaz v. Tamil Nadu Handloom Weavers Co-operative Society Ltd.)

(7) (2005)9 SCC 36 : (2004 Cri LJ 4634) (Kachrulal Bhagirath Agrawal v. State of Maharashtra)

(8) (2004)7 SCC 166 : (AIR 2004 SC 2421) (SJS Business Enterprises (P) Ltd. v. State of Bihar

16. Countering the above arguments advanced by the learned counsel for the petitioner, Mr. H. Rahman, learned counsel representing the respondent No. 5 submitted that the writ petition itself is not maintainable in view of the suppression of material fact on the part of the petitioner. He submitted that the petitioner while filing the writ petition ought to have mentioned about filing of the suit and the revision petition. He submitted that the disputed questions of fact cannot be gone into exercising the writ jurisdiction. He also submitted that appropriate remedy for the writ petitioner is to take recourse to the Civil Court. He has placed reliance on the following decisions:

(1) 1997 (2) GLT 213 (M/s. Apollo Machinery Mart & others v. State of Assam and 20 others)

(2) AIR 1989 Allahabad 189 (Shri Sanatan Dharam Sabha v. The Registrar, Firms, Societies and Chits, U. P., Lucknow)

(3) (2006)7 SCC 740 : (2006 AIR SCW 5155) (Antonio S. C. Pereira v. Ricardina Noronha)

17. I have given anxious consideration to the submissions made by the learned counsel for the parties as well as the materials on record. Before examining the legality of the impugned order passed by the ADM, Nagaon, I first proceed to deal with the submission made by the learned counsel for the respondent No.5 that there being suppression of material fact, the writ petition is not maintainable. Two fold submissions made in this regard is that once the petitioner invoked the revisional jurisdiction of the learned Sessions Judge, Nagaon and thereafter the jurisdiction of the Civil Court by filing title suit, the petitioner could not have, at the same time, invoked the writ jurisdiction. Secondly, there being suppression of the fact that at the time of filing of the writ petition, the petitioner had already invoked the jurisdiction of the Civil Court by filing the Title Suit No. 30/02, the petitioner being guilty of suppression of material fact, the writ petition is liable to be dismissed.

18. While filing the writ petition, the petitioner clearly mentioned about the revision application being CM No. 40(N)/02 and withdrawal of the same and thus, it cannot be said that this fact was suppressed by the petitioner. The civil suit was for permanent injunction restraining the defendant/respondent No. 5 from entering into the shop premises. The suit was not in respect of the impugned order dated 27-3-2002 and the proceeding U/S. 144 Cr. P. C. initiated by the ADM, Nagaon. The question which has been raised in this writ proceeding is the legality and propriety of the order passed by the ADM, Nagaon on the basis of the application filed by the respondent No.5 for initiation of the proceeding u/S. 144 Cr. P. C. thus, non mentioning of filing of the suit which has no relation to the impugned order is of no consequence so as to contend that there was material suppression of fact. Even if the factum of filing of the suit had been mentioned in the writ petition, same would not have ousted the jurisdiction of the writ Court. The omission made by the petitioner in not making a mention of filing of the suit for permanent injunction, cannot be said to be an omission so as to constitute material suppression of fact.

19. As noticed above, the suit has also been withdrawn by the petitioner on 9-1-2003. I now proceed to deal with the main issue raised in the writ petition which is, the propriety or otherwise of passing the impugned order dated 27-3-2002 on the basis of the application filed by the respondent No. 5 u/S. 144 Cr. P. C.

20. The contents of the petition filed by the respondent No.5 purportedly u/S. 144 Cr. P. C. have been noted above. The consideration of this Court is as to whether the disclosure made in the application warranted initiation of any proceeding u/S. 144 Cr. P. C. and that too with the passing of an ex-parte interim order. It is also to be considered as to whether the disclosure made in the application constituted sufficient grounds for proceeding u/S. 144 Cr. P. C. and immediate prevention as was provided by the ADM, Nagaon in the ex-parte impugned order dated 27-3-2002.

21. This Court in the case of (1986)2 GLR 167 (Maqubul Hussain v. Syaidur Rahman) dealing with the scope and ambit of the power of the Magistrate to draw up proceeding u/S. 145 Cr. P. C, observed that to assume jurisdiction the Magistrate must be satisfied that the dispute is likely to cause "a breach of peace". It is not a breach of mental peace of the parties, but apprehended breach of peace in the locality.

22. It was further observed that Section 145 Cr. P. C, is an extra ordinary provision to grant extra ordinary relief, when there is likelihood of breach of peace of the locality. Serious concern was expressed that just on some pretext or pretence flood of proceedings u/S. 145 Cr. P. C. are entering the Courts like flood water entailing wastage of public money and time. It was emphasized that before taking up a proceeding u/S. 145 Cr. P. C, the Magistrate must be careful, cautious and circumscribed and slow. Referring to the decision of the Apex Court in R. Puri Mahant v. State of U. P. reported in AIR 1985 SC 472 : (1985 Cri LJ 752) it was observed that the queintessence of the said decision is to discourage the proceeding u/ S. 145 Cr. P. C. as far as possible. Noticing the warning sounded by the Apex Court in the said decision, it was observed that the Magistrate should initiate the proceeding u/ S. 145 Cr. P. C. only when essential elements of the Section are found to be present in the case.

23. The following observation made by this Court in the said decision of Moqbul Hussain is worthy to mention:

"It is difficult to obtain an order of injunction in a civil suit because the party is ' bound to satisfy the Court that there is a ' prima facie case, the balance of convenience tilts in his favour and also to satisfy the Court that if injunction is refused the applicant shall suffer irreparable injury. So many hurdles are to be crossed before obtaining an order of injunction. An order of injunction or prohibitory order takes away certain rights of the party injuncted. It is indeed difficult to obtain an injunction, but just throw a petition and assert that there is apprehension of breach in respect of the possession of an immovable property, claim for drawing up a proceeding asserting right to possess the property, a proceeding is readily drawn up i/S. 145, Criminal Procedure Code. The proceeding is initiated no matter it is a private dispute between the parties or it is a dispute which necessitates drawl of the proceeding for the maintenance of public order and tranquility.

24. The above observation made in relation to the ambit and scope of power of Magistrate to draw up proceeding u/S. 145 Cr. P. C. squarely applies to the proceeding u/ S. 144 Cr. P. C. In the case of Madhulimiya v. Sub-Divisional Magistrate reported in (1970)3 SCC 746 : (1971 Cri LJ 1720) the Apex Court observed thus :— (Para 25)

"24. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being above to prevent some harmful occurrences. As it is possible to action absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without if the exercise of power would have no justification. It is not an ordinary power following from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence : see Mst. Jagrupa Kumari v. Chobey Narain Singh (1936 (37) Cri LJ 95) (Pat)" which in our opinion is correct in laying down this proposition. These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquility, riots and affray 'lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so far as the other parts of the section are concerned the key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order.

25. In the instant case, the ADM. Nagaon, by his impugned order dated 27-3-2002 passed on the basis of the application filed, restrained the petitioner from entering into the land which according to the petitioner facilitated the respondent No. 5 to illegally enter into the shop premises and thereby dispossessed the petitioner. In spite of the interim order passed by this Court directing to maintain the status quo ante as on 28-3-2002, the petitioner having not been restored back with the possession, the learned counsel for the petitioner during the course of hearing submitted that the respondents are guilty of contempt of this Court for violation of the interim order passed by this Court.

26. In the counter affidavit filed by the respondent No.5 although he has contended that he was residing all along in the same locality in his own house and that he was residing in the house located behind the shop premises, but there is no specific averments to the effect that he was in occupation of the shop premises when the impugned order dated 27-3-2002 was passed. The impugned order also did not speak of the shop premises, but only provided that the second party/petitioner would not enter into the land mentioned in the schedule to the application. The schedule to the application while mentioning about the land also indicated the dwelling house, but not the shop premises. Certainly the shop premises could not have been described as dwelling house. Thus, the moot question which has come up for consideration is as to whether the respondent No.5 on the strength of ex-parte impugned order dated 27-3-2002 could have entered into the shop premises.

27. Although the report called for by this Court by its various orders was never furnished, but the respondent No. 4 has produced the records as per the direction of this Court. The records have revealed the order passed on 6-9-2002 by the Chairman, Nagaon Municipal Board, Nagaon refusing to mutate the name of the respondent No.5 in respect of the shop premises under holding No. 223, Ward No. 15 in place of his father. Such refusal has been made on theground that this Court has directed to maintain status quo ante as on 28-3-2002. From the order passed on 6-9-2002 by the Chairman, Municipal Board, Nagaon, it is seen that the respondent No. 5 filed an application on 2-4-2002 to the Board for mutation of his name and deletion of the name of the occupier, namely Shri Sujit Kr. Das who is the petitioner in the instant case. As per the said order, the name of the petitioner has been recorded as occupier of the holding. Thus, it is false on the part of the respondent No.5 to contend that he was in possession of the shop premises when the impugned order dated 27-3-2002 was passed.

28. The records have further revealed the final report dated 17-12-2002 submitted by the police in the aforesaid P. S. Case No. 193/02. As per the final report, M/s. Radha Govinda Medical Hall was in existence since 1-11-54 and the same was run by elder brother of the petitioner, Dr. Ajit Kr. Das. Thereafter he left Nagaon in 1982 leaving the shop premises in the custody of the petitioner. After 1982, the petitioner was in possession of the shop premises and used to pay rent and Municipal tax regularly towards running the pharmacy business. As per the report, it was on 28/29-3-2002 (midnight), the respondent No.5 along with his family members, son-in-law etc. entered into the shop premises by breaking open the lock. The report further reveals that the petitioner entered into the tenancy agreement on 15-1-1986 with respondent No.5 in respect of the shop premises. After such agreement, the petitioner continued to run the pharmacy business which was initially good, but later on gradually deteriorated. The petitioner used to visit the shop premises at times. According to the report, the monthly rent was Rs. 200/-, but the present rate of rent would be around Rs. 4000-5000/-. As per the report, since about four months back from the date of the incident, the pharmacy was completely closed and since the petitioner did not pay the rent, the respondent No.5 took possession of the shop premises and started living there. The report further states that since the matter was considered to be in the nature of civil dispute, no proceeding on the strength of the police case could be drawn up and that it was on that basis final report closing the case was submitted. Along with the final report a seizure list and Jimma Nama were also submitted.

29. The seized documents are the Municipal tax receipts, rent payment receipts, tenancy agreement and also the documents relating to construction of certain structures including toilets, installation of tube well etc. at the own expenditure of the petitioner. Further documents seized was in respect of the tenancy which started way back in 1954. The documents mentioned in the Jimma Nama and seizure list form part of the records.

30. From the aforesaid report, the order passed by the Chairman, Nagaon Municipal Board on 6-9-2002 as well as the other documents contained in the records clearly revealed that the petitioner was dispossessed from the shop premises by the respondent No. 5 on the strength of the impugned order dated 27-3-2002 by which the petitioner was restrained from entering into the land. The whole basis of initiation of proceeding u/S. 144 Cr. P. C. was to enter into the shop premises knowing it well that once the shop premises is intruded upon, the petitioner will not be in a position to enter into the land and for that matter the shop premises in view of the prohibitory order passed by the ADM, Nagaon.

31. Once it is established that the respondent No. 5 entered into the shop premises on the strength of the impugned order dated 27-3-2002, there is no escape from the issuance of the direction for return of possession of the same to the petitioner, who was a regular tenant under the respondent No. 5. It is immaterial whether he was paying fair rent and/or whether he had visited the shop premises for the last about four months till the incident occurred and also as to whether he was a defaulter in payment of rent. For all these, the respondent No. 5 has other course of action open for him under the law, but certainly not the course of action he had adopted by initiating the proceeding u/S. 144 Cr. P. C.

32. The ADM, Nagaon also acted mechanically in the matter, without any application of mind and finding out as to whether the petition filed by the respondent No.5 disclosed any such situation warranting passing of the kind of the order in the form of the impugned order dated 27-3-2002. The power and jurisdiction u/S. 144 Cr. P. C. is to be exercised sparingly and not in a mechanical manner. What was that disclosure made in the application filed by the respondent No! 5. There was no such statement warranting issuance of an ex-parte order by the ADM, Nagaon. Rather, the application disclosed that the petitioner was a tenant under him. In the application, while admitting that the petitioner was a tenant under him, the respondent No.5 also stated that he tried to take possession of the land. While making a claim in respect of the land, the respondent No. 5 also included the shop premises situated within the land as his dwelling house. This was a clever ploy on his part since it is amply evident from the records and the respective pleadings that the same was not a dwelling house, but was the shop premises of the petitioner in the name and style of M/s. Radha Govinda Medical Hall. The police report, stated to be the final report, clearly reveals that the shop premises was in occupation of the petitioner, but he was dispossessed from the same by the respondent No. 5 on the strength of the impugned order dated 27-3-2002.

33. In view of the above, the police also acted illegally in submitting the final report stating the dispute to be of civil nature, unmindful of the fact that the respondent No.5 was not empowered to enter into the shop premises on the strength of the impugned order and that it was a case of criminal trespass on the part of the respondent No.5 making him liable for criminal action. Instead it became a party to the illegality/ criminality committed by the respondent No.5 in breaking open to the lock of the shop premises without any authority of law. The police and the respondent No. 5 have also violated the interim order passed by this Court directing to maintain status quo ante.

34. The decision in Gulam Abbass (1981 Cri LJ 1835) (supra), is in respect of the maintainability or otherwise of the writ petition. In that case, the Apex Court held that the order passed u/S. 144 Cr. P. C. is amenable to the writ jurisdiction, if it violates fundamental rights. The decision in the case of Gurucharam Singh (AIR 1977 SC 5) (supra) emphasized that the possession of a trespasser, by no stretch of imagination, can be deemed khas possession or even constructive possession of the owner.

35. The decision in the case of S. R. Ejaz (AIR 2002 SC 1152) (supra) has been referred to emphasize on the legal effect of forcible dispossession and inaction on the criminal complaint. In that case, since no action was taken by the police, the appellant invoked the writ jurisdiction. As in the instant case, the appellant in that case also was dispossessed forcibly from the tenanted premises by his landlord. It was observed that if the appellant had willfully handed over the possession, he would not have immediately lodged the criminal complaint and made representation to the higher authorities, nor he would have filed a writ petition for appropriate direction.

36. The decision in Gian Devi Anand (AIR 1985 SC 796) (supra) has been cited by the learned counsel for the petitioner to emphasize that the heirs of the statutory tenant are entitled to same protection against eviction as afforded to the tenant. This aspect of the matter need not detain us in view of the above finding and also in view of the fact that, it is on record that even the petitioner is a tenant under a tenancy agreement.

37. In the Division Bench judgment in the case of Banwarilal Kejriwal (AIR 2000 Gau 26) (supra), a tenant was sought to be evicted from a tenanted premises in aid of the criminal Court. It was found that the order for breaking open the lock of the room occupied by the tenant and thereafter allowing the landlord to take possession of the room/house was made on the strength of the application of the landlord presented before the CJM, Sibsagar. On the basis of the said application, the CJM ordered the Officer-in-Charge of the Police Station to register a case and to investigate and to submit the report although no offence as such was disclosed in the application. Even the police had expressed its inability to register the case and requested the Court to pass an order to break open the lock of the room in question enabling them to enter into the room to verify the contents for the purpose of registering the case under appropriate section of law. The CJM readily acceded to the request of the police and thereafter, the police handed over the possession of the room to the landlord. It was observed that the authorities daunting the State power fell under the spell of the landlord and delivered the possession of the tenanted premises in aid of the criminal Court through police. In such circumstances, the decision of the learned single Judge in holding that the action of the CJM and the police officer was illegal and without jurisdiction, was upheld by the Division Bench.

38. In the decision in Kachrulal I Bhagirath Agarwal (2004 Cri LJ 4634) (supra) the Apex Court emphasized on the scope and ambit of the Magistrate exercising the power u/Ss. 133 and 144 Cr. P. C. This aspect of the matter had been discussed and need not be discussed any further in reference to this decision. Suffice it to say that the Apex Court emphasized on the need to exercise the power with self imposed restraint.

39. Mr. H. Rahman, learned counsel for the respondent No. 5, has placed reliance on the decisions cited by him primarily on the ground relating to maintainability of the writ petition, when there is suppression of material fact and that writ jurisdiction is not the appropriate remedy when the dispute raised is in the nature of civil dispute. In view of the finding recorded above, these decisions are of no help to the case of the respondent No.5.

40. The Division Bench of this Court in M/s. Apollo Machinery Mart v. State of Assam reported in 1997 (2) GLT 213, in respect of proceeding u/S. 133 of Cr. P. C., allowing the writ petition filed by the appellant issued direction to the police to hand over the possession of the land in question to the appellant. In that case, a petition u/S. 133 Cr. P. C. was filed before the Executive Magistrate against the appellant. The Executive Magistrate passed an order directing the appellant to remove purported obnoxious material immediately. Being armed with the said order and in the garb of removing obnoxious materials lying in the premises, the police broke open the lock and handed over the possession of the house, shed/structure to the first party. The appellant on visit of the premises next morning found that the structures were being demolished. He naturally objected to the said demolition, but to no avail. His complaint before the Judicial Magistrate which met with dismissal for want of evidence. It was observed that the Magistrate as well as the implementing parties far acceded and overstepped their jurisdiction.

41. In the instant case also, the records have revealed that during the subsistence of the tenancy agreement between the parties, the respondent No.5 entered into the shop premises by breaking open the lock of the petitioner. The Executive Magistrate also solely on the basis of the averments made in the application and without calling for any report from the police passed the prohibitory order against the petitioner restraining him from entering into the land. On the strength of such an order, the respondent No. 5 along with his family members, as has been revealed from the final report submitted by the police, entered into the shop premises at the midnight of 27-3-2002 and 28-3-2002. All out efforts made by the petitioner went in vain including the interim orders passed by this Court. Inspite of the interim order directing the respondents to maintain status quo ante, the possession of the shop premises has not been handed over the petitioner till date. The conduct of the respondent No.4 who is now respondent No. 6, is also contemptuous. In spite of repeated orders passed by this Court, he did not care to submit the report as was called for. However, finally he produced the records through the State Govt.

42. In view of the above, on both counts, the impugned order dated 27-3-2002 passed by the ADM, Nagaon M. R. Case No. 180/02 being not legally sustainable and secondly, on the strength of the said order the respondent No.5 could not have entered into the shop premises by breaking open the lock, during the subsistence of the tenancy agreement with the petitioner, the writ petition deserves to be allowed which 1 accordingly do. Consequently, the impugned order dated 27-3-2002 passed by the ADM, Nagaon in I M. R. Case No. 180/02 stands set aside and ' quashed.

43. As a natural consequence of the above, all consequential action adopted by the respondent No.5 also stands set aside and quashed. Since the petitioner was dispossessed from the shop premises on the strength of the impugned order dated 27-3-2002, which even otherwise also the respondent No.5 could not have resorted to, the petitioner should be restored back with the possession of the tenanted premises/shop premises forthwith. Whatever necessary follow up action in this regard is to be taken by the police, same shall be taken and specific direction is issued in this regard to the respondent Nos.2, 3 and 4 to ensure immediate restoration of the shop premises to the petitioner. In addition, direction is also issued to the respondent No.5 to hand over the possession of the shop premises to the petitioner which he forcibly occupied by taking recourse to the impugned order dated 27-3-2006.

44. The writ petition is allowed leaving the parties to bear their own costs.

Petition allowed.
 
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