Decided on June 20,1972

STATE Respondents


- (1.)THIS Rule must be made absolute.
(2.)BEREFT of all verbiage, the facts are as follows: a petition of complaint was filed by the complainant-opposite-party Jane alam Haldar on the 24th November, 1970 in the court of the sub-Divisional magistrate, Diamond Harbour, district 24-Parganas alleging inter alia that he has a godown at the Bijoyganj Bazar for storing rice, which he took on rent from Bejoy Krishna Banerjee. On the 30th January, 1970 his belongings were removed and the godown was locked for which he started a criminal case. On the 22nd November, 1970 he went to open the lock with his witnesses but the accused persons did not allow them to do so and he was further restrained from entering into the godown causing prejudice to him. The learned Magistrate took cognizance of the case and summoned the accused persons under section 341 of the Indian Penal Code. On the 25th November, 1970 on an application being filed by the complaint, 1he learned Magistrate passed an order directing the officer-in charge of Mandirbazar P. S. to open the lock of the complaint's godown for the purpose of removing the alleged wrongful restraint. A petition of objection was filed on behalf of the accused-petitioner No, 1 monotosh Banerjee on the 12th December, 1970 stating inter alia, that he and his co-sharers are the owners of the said godown and complainant was never a tenant thereof and that in any event the order for removing the lock should be stayed till the disposal of the case. On the 21st January, 1971, Sri S. N. Mondal, the learned Magistrate who did not take cognizance of the case passed an order after perusing the aforesaid order dated the 25th November, 1970, directing specifically that the lock should be broken open and the status quo should be maintained. This order was impugned and a revisional application was preferred before the Sessions Judge. It was however dismissed on the 19th April, 1971 giving rise to the present application and the Rule.
(3.)MR. Chaitanya Chandra Mukherjee, Advocate with Mr. Subrata Roy, advocate appearing in support of the rule has taken a short point. Mr. Mukherjee contended that the order passed by the court below directing the lock to be broken open is really begging the point at issue in the case itself and makes the proceeding under section 341 infructuous, more so, when specific objection was taken by the accused persons as to the ownership and possession of the godown in question. The order passed is not only dehors the statute but against the principles of natural justice. Mr. Mihir Kumar Roy, advocate appearing on behalf of the state joined issue. Mr. Roy submitted that this is an interlocutory order which could be passed by the court in the interests of justice in the exercise of its inherent powers. Nobody appeared for the complainant-opposite-party.

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