Mrityunjoy Paramanik vs State Of West Bengal & Ors

The affidavit-of-service filed by the revisionist be kept on record.

The impugned order no.1 dated 24.12.2018 passed by the Learned Additional District and Sessions Judge, Baruipur, South 24 Parganas in Criminal Motion No.119 of 2018 granting stay of a proceeding in connection with M.P. Case No.4315 of 2018 under Section 144 of the Cr.P.C. pending before learned Executive Magistrate, Baruipur is the subject matter of challenge in this revisional application under Section 227 of the Constitution of India.

Learned advocate for the revisionist submits that order dated 7.12.2018 passed by the learned Executive Magistrate, Baruipur in connection with M.P. Case No.4315 of 2018 requiring I.C., Baruipur to serve a copy of the petition upon the opposite party and B.L. & L.R.O., Baruipur to hold an enquiry and report with a further direction upon the Officer-in-Charge of Baruipur Police Station to report as to whether there was a chance of breach of peace in connection with the case property involved therein is no longer revisable order being interlocutory one.

Further submission raised by the revisionist is that the order directing police and B.L. & L.R.O. to furnish a report is nothing but to arrive at satisfaction of the learned Executive Magistrate to go ahead in terms of the provisions contained in Section 144 Cr.P.C. No prohibitory order as such under Section 144 (2) Cr.P.C. was recorded giving scope so as to become revisable under the revisional jurisdiction of Court.

Learned advocate representing the State submits that no positive order was passed within the ambit of prohibatory order in terms of the provisions contained in Section 144 (2) Cr.P.C. and as such, there was nothing left in the order itself to be prejudiced by either of the parties to this case.

The learned Executive Magistrate, Baruipur, in connection with a proceeding, registered as M.P. Case No.4315 of 2018 proceeded to obtain a report from I.C. Baruipur Police Station and also from B.L. & L.R.O., Baruipur in order to ascertain the status of the land in dispute including its possession after directing I.C. Baruipur Police Station to serve copy of the application under Section 144 Cr.P.C. upon the private opposite party. The private opposite party/revisionist felt aggrieved smelling the order passed by the Learned Executive Magistrate, Baruipur in connection with such M.P. Case No.4315 of 2018 and moved a criminal motion before the Learned Additional Sessions Judge, Baruipur in connection with Criminal Motion No.119 of 2018.

The order granting stay by the Learned Additional Sessions Judge, Baruipur appears to have recorded without recording any reasons therefor. Any order without any reasons is not encouraging one. Offering of reasons to an order makes an order live and most meaningful.

Upon perusal of the order dated 7.12.2018 recorded by the learned Executive Magistrate, it appears that learned Magistrate simply proceeded to obtain two reports, one from I.C. Baruipur Police Station and another from B.L. & L.R.O., Baruipur, requiring them to hold an enquiry and furnish report accordingly, for arriving at a satisfaction with regard to the status of the land in dispute together with its possession of the land. No prohibitory order as such was recorded in terms of the provisions contained in Section 144 (2) Cr.P.C.

In absence of any effective order being recorded by the learned Executive Magistrate, so as to cause prejudice to the party feeling aggrieved, their lies no scope for exercising power under revisional jurisdiction. The test of interlocutory order came to be decided by the Apex Court in a decision reported in (2001) 7 Supreme Court Cases 401 delivered in the case of Bhaskar Industries Ltd. Versus Bhiwani Denim & Apparels Ltd. And others. Wherein and whereunder it was held that safe test for ascertaining whether an order is interlocutory or not is if the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage. It would be profitable here to refer paragraph-8 of the decision referred above hereinbelow:

"8. The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short "the Code") is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this: if the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage."

There was no culmination of the proceeding registered in connection with M.P. Case No.4315 of 2018 so as to become revisable merely because of calling for a report from two agencies, one from I.C. Baruipur and another from B.L. & L.R.O., Baruipur in order to ascertain actual status of the case property involved in this case together with the possession thereof. In the absence of any culmination being reached in the order dated 7.12.2018 in connection with aforesaid M.P. proceeding, passed by learned Executive Magistrate, the exercise of authority in revisional jurisdiction granting stay in connection with Criminal Motion No.119 of 2018 passed by Learned Additional District and Sessions Judge, Baruipur cannot be said to have been properly exercised upon due exercise of judicial discretion. The impugned order grating stay by order dated 24.12.2018 in connection with Criminal Motion No.119 of 2018 passed by learned Additional Sessions Judge as such cannot go unaltered. The impugned order dated 24.12.2018 by learned Additional Sessions Judge in Criminal Motion No.119 of 2018, is, thus, set aside.

Learned Additional Sessions Judge, Baruipur in connection with Criminal Motion No.119 of 2018 is directed to dispose of the criminal motion within a fortnight from the date of communication of this order with a direction to dispose of the same in accordance with the provisions of the law. After the disposal of the Criminal Motion No.119 of 2018, learned Executive Magistrate, Baruipur in connection with M.P. Case No.4315 of 2018 would be at his liberty to proceed in accordance with the law subject to the provisions of limitation, prescribed under the law.

With this direction/observation, the revisional application stands disposed of.

Learned advocate for the revisionist is directed to communicate this order to the Learned Additional Sessions Judge, Baruipur, South 24 Parganas so that the exercise supposed to be undertaken by the revisional court in terms of the direction recorded in this order may be expedited.

Urgent certified photostat copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.