Kalyan Jyoti Sengupta, J. - (1.) Petitioner being aggrieved by inaction of police authority in carrying out order dated 14th June, 1999 read with 9th January, 2001 passed in Misc. case No. 30 of 1996 by the learned Executive Magistrate at Baruipur in case of Niranjan Chakraborty v. Gouranga Banik . Short fact of the case is that petitioner filed an application under Section 147 of the Criminal Procedure Code against Balai Mondal & Ors. In this case it was alleged by petitioner that opposite party caused obstruction on the pathway of petitioner. In the aforesaid case the learned Executive Magistrate passed an order upon hearing petitioner and considering the evidence, on 14th June, 1999, and directed that obstruction on the said pathway to be removed. The order was informed to the officer-in- charge of the concerned police station namely Baruipur. As the order was not carried out subsequently an application was made by the petitioner on 9th January, 2001 and on that date a further order was passed by the learned Executive Magistrate directing the officer-in-charge of Baruipur Police Station to comply with the order dated 14th June, 1999. However despite communication of the aforesaid two orders it was not carried out by the officer- in-charge of the police station. After this application had been filed the police authority as assured by Mr. Pulak Chandra Mondal learned Advocate appearing for the State, carried out the said two orders and report of compliance was also filed subsequently. On 5th June, 2001 private-respondents appeared in this matter and took direction for filing affidavits. In the affidavit-in-opposition question of maintainability of the writ petition has been taken contending that this Court has no jurisdiction to determine the dispute of civil nature in the writ jurisdiction by reason of the fact that the issues and/or question regarding right, title and possession of the pathway are pending for determination before the learned Civil Judge, Junior Division, Baruipur in a civil suit being No. T.S. 17 of 1996. This Court cannot be converted into executing Court for an order of the learned Magistrate. During pendency of the said suit the petitioner who is the defendant in the aforesaid title suit is purported to have filed the aforesaid application under Section 147(3) of the Cr. P. C. to establish claim against the private-respondent though the suit was dismissed for default once, however, it was restored on 5th March, 2001. In the affidavit-in-reply factum of restoration of the suit has been denied and disputed. It is stated that two title suits being Nos. 170 of 1996 and 171 of 1996 filed by the private-respondents were dismissed on 18th February, 1998 and 8th June, 1998 respectively for not taking any step by the respondents. The proceedings under Section 147 of the Cr. P. C. was initiated long before restoration of the title suit.
(2.) The learned lawyer of the writ petitioner submits that in the present writ petition it is not the question of deciding the title of the parties in relation to the property nor the disputes involved herein are of civil nature. It is sheer case of police inaction as the two order's passed by the learned Executive Magistrate, have not been carried out by the officer-in-charge of concerned Police Station by removing obstruction. It is the duty of the police authority under Section 23 of the Police Act 1861 to carry out the order passed lawfully by the authority concerned. In support of his contention he has relied on two decision, one of which is of Supreme Court (AIR 1968 Cal 407) and another of this Court (AIR 1981 SC 2198).
(3.) Mr. Malay Chakraborty learned Senior Counsel appearing with Mr. Debashis Purkait on behalf of the private-respondent Nos. 7,8 and 9 submits that the disputes involved in the writ petition are of civil nature and for which the civil suits have been filed. This Court cannot have any jurisdiction to act as an executing Court of the orders of the learned Magistrate. He also submits that the learned Magistrate has no jurisdiction to pass order for removal when the Civil Suits are pending. He further contended that the Court of criminal jurisdiction cannot arrogate itself to the position of Civil Court. Even assuming the aforesaid two orders are lawful and valid then the petitioners have got alternative remedy in enforcing the aforesaid two orders by initiating proceedings under Section 188 of I.P.C. In support of his contention he relied on the decisions reported in AIR 1993 SC 1225, AIR 1996 SC 1517, 1999(2) CHN 555, 2000(1) CHN 291, 1996(2) CLT 418.;