MALAY KUMAR BASU, J. - (1.) THIS is a revisional application under Section 401 read with Section 482 Cr.P.C. filed by Nanturam Naskar and three others (hereinafter referred to as the petitioners) against Ajit Kumar Mondal (hereinafter referred to as O.P. No. 1) and the State of West Bengal (to be mentioned as O.P. No. 2). The relevant facts leading to this application in short are as follows :- The O.P. No. 1 filed an application under Section 144(2) of the Cr.P.C. being M.P. Case No. 618/97 against these petitioners before the Executive Magistrate, Baruipur alleging inter alia that the O.P. No. 1 was cultivating the disputed land as described in the schedule of the application and was recorded tenant, but the petitioners were forcibly cutting away the paddy and straw grown thereon. The O.P. No. 1 further lodged a complaint before the O.C., Kultali P.S. on 6.7.1997 on the same allegations being G.D.E. No. 162. The learned Executive Magistrate after hearing the applicant, that is the O.P. No. 1 passed the order dated 15.7.1997 directing the O.C., Kultali P.S. to enquire and report by the next date fixed i.e. 29.8.1997 and also directed the O.C. to see that no breach of peace took place and no wrongful acts were done by the O.Ps. of that case in respect of the disputed land. The learned Magistrate also directed the B.L.L.R.O., Kultali to make an enquiry and submit a report by the date fixed. In the meantime, the petitioners filed a title suit against the O.P. No. 1, Ajit Kumar Mondal, before the Court of 3rd Munsif, Baruipur being R.S. No. 145/97 praying for declaration of title and granting of injunction in respect of the disputed land in their favour and the learned Munsif passed an order granting temporary injunction under Order 39 Rules 1 and 2 Cr.P.C. Code in their favour in respect of the disputed land being Dag. Nos. 723 and 1222 under Khatian No. 236 of Mouza Garankanthi and that suit has been still pending and that order of temporary injunction has been still continuing. On 11.9.1997, the O.P. No. 1 further lodged a complaint under Section 188 Cr.P.C. in connection with the said M.P. case before the Court of learned Executive Magistrate, Baruipur alleging that the petitioners had violated the aforesaid order dated 15.7.1997 of the learned Executive Magistrate. Thereafter, on 17.11.1997, the learned Executive Magistrate passed the impugned order converting that proceeding under Section 144 Cr.P.C. into one under Section 145 Cr.P.C. and appointing a receiver for the land in question and directing the O.C., Kultali P.S. to enquire and report in respect of the alleged violation of his order dated 15.7.1997. The learned Executive Magistrate further directed that the receiver so appointed would arrange for harvesting and selling of the produce of the land by auction and sale proceeds would be deposited into the treasury.
(2.) BEING aggrieved by and dissatisfied with this order the petitioners have preferred this revisional application challenging the order as illegal, invalid and unsustainable. It is contended that the learned Executive Magistrate has admitted in the impugned order that a Civil Suit was pending between the parties over the disputed land before the learned 3rd Munsif and an interim order had been passed by the learned Munsif directing the parties to maintain status quo as regards possession and the learned Magistrate fell into an error of law by appointing the B.L.L.R.O., Baruipur as the receiver in respect of the disputed land. According to the petitioner, the learned Executive Magistrate committed a wrong by not taking into consideration the settled legal position that where there has been an order of injunction passed by a Civil Court in respect of any land between the same parties a proceeding under Section 144 Cr.P.C. cannot be legally maintainable and no such order can be passed by the Executive Magistrate bearing upon the state of possession in respect of that land. The petitioners' contention is that the entire proceeding before the Executive Magistrate has become infructuous in view of the pendency of the Civil suit and the order passed by the Civil Court and on that ground it is liable to be quashed. The contention of the learned Advocate for the Opposite Party is that in the face of such an order passed by the Civil Court in respect of the disputed land, the Executive Magistrate was not competent to pass an order under this Section. On a careful perusal of the impugned order, I find that the learned Executive Magistrate has not made any observation touching the state of actual possession in respect of the disputed land. Instead, he has directed an enquiry to be made by the Officer-in-Charge, Kultali Police Station in respect of the alleged violation of his previous order dated 15th July, 1997 passed under Section 144 of the Code of Criminal Procedure. What is material for the present purpose is that in his order he has appointed a receiver to take into custody the standing crops of the disputed land and arrange for the sale of the same and also deposit of the sale proceeds in the Government Treasury. This part of the order has been made in view of sub-section (8) of Section 145 of the Code of Criminal Procedure. The question is whether this part of the order of the learned Executive Magistrate can be sustained. In support of the above contention of the learned Advocate for the Opposite Party, a decision reported in 1992(1) Cr.LJ 2032, Murlidhar v. State of U.P. has been cited. It has been held in this judgment that where the custody of a seized truck which was the subject-matter of the trial was given by the Court to a party, the order was of interlocutory nature and revision there against was not maintainable. Learned Advocate for the Opposite Party submits that the present order under which an enquiry has been directed to be made pending final order to be passed by the learned Magistrate under Section 145 of the Code of Criminal Procedure is obviously of interlocutory nature and therefore the revisional application cannot be legally maintainable against such an order. But this contention is not correct. This revisional application is against the entire order of the Executive Magistrate which includes the second part of it to the effect that the local B.L.L.R.O. was appointed as a Receiver in respect of the disputed land to take into custody the produce of the land and to dispose of them and also to deposit the sale proceeds in the Government Treasury. That part of the order is certainly not of interlocutory nature and it affects the rights and liabilities of the parties substantially and therefore it is a revisable order and its legal maintainability does not suffer in any way.
(3.) THE second contention of the learned Advocate for the Opposite Party is that when the Civil Court has passed an order of injunction in respect of the very same land in a civil suit between the same parties, then the hands of the learned Executive Magistrate are tied and he cannot pass an order like this imposing restriction on the parties' right to enjoy the same in their own way.;