MONOJ KUMAR MUKHERJEE, J. - (1.) THIS Rule is directed against a final order passed under Section 145 (6) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by the learned Executive Magistrate, Calcutta.
(2.) ON 18 -10 -78 the petitioner Abhimanyu Kumar Ray filed an application before the learned Executive Magistrate, Calcutta praying for an order under Section 144 (2) of the Criminal Procedure Code restraining Nanakram Agarwala, the opposite party No. 1 herein, from disturbing the peaceful possession of the petitioner in respect of a room on the top floor of premises No. 12, Nirmal Lohia Lane, P. S. Burrabazar, which, according to the petitioner was in his peaceful possession and from which Nanakram was trying to oust him by force. On the same day, Nanakram filed a similar application praying for an order under Section 144 (2) of the Code restraining the petitioner and others from disturbing his possession in respect of the self same room. The learned Magistrate sent both the petitions to the Officer -in -Charge, Burrabazar Police Station for an enquiry. On 11 -11 -78, the Officer -in -Charge submitted a report stating that there was an apprehension of the breach of the peace over the possession of the room in question as both Abhimanyu Kumar Ray and Nanakram Agarwala were claiming possession of the same. According to the police report, the petitioner was claiming possession by virtue of a tenancy created in his favour by D. P. Jhunjhuniwala, the opposite party No. 2 herein, while Nanakram was claiming possession as a tenant under Kashi Prosad Jhunjhuniwala, the opposite party No. 3.
(3.) BEING satisfied from the said police report that a dispute likely to cause a breach of the peace existed concerning the possession of the said room on the top (4th) floor of the premises No. 12, Nirmal Lohia Lane, Calcutta, the learned Magistrate by his order dated 11.11.1978 drew up a proceeding under Section 145 (1) of the Code and directed all the above four parties to the dispute to appear in his Court on 18 -11 -78 and to put in written statements of their respective claims as respects the fact of actual possession. Pursuant to the said order the parties appeared before the learned Magistrate and filed their respective written statements. The learned Magistrate thereafter heard the parties and decided that the opposite party No. 1 was in possession of the disputed room at the relevant point of time and accordingly by the impugned order dated Jan. 13, 1979 he declared that the opposite party No. 1 was entitled to the possession thereof and forbade all disturbances of such possession until eviction in due course of law. In arriving at his decision the learned Magistrate relied upon the affidavits of the neighbouring shop owners and co -tenants of the premises in question, filed by the opposite party No. 1 as part of his written statement, and took note of the fact that no such person came to swear affidavit on behalf of the petitioner. In assailing the impugned order Mr. Sankar Das Banerjee, the learned counsel appearing for the petitioner firstly contended that the learned Magistrate erred in law in entertaining and relying upon the affidavits filed by the opposite party No. 1 and basing his order thereupon. According to Mr. Banerjee, under the Code, unlike the Criminal Procedure Code, 1898 (hereinafter referred to as the old Code) evidence can be given only by examining witnesses in Court and not by filing their affidavits instead. Mr. Asoke Kumar Sen, the learned counsel appearing for the opposite party No. 1, in repelling the above contention of Mr. Banerjee, argued that the affidavits were filed in the instant case as part of the written statement of the opposite party No. 1 and not as evidence as contemplated in sub sections (4) of Section 145 of the Code and the learned Magistrate was fully justified in relying upon the affidavits as it was obligatory on his part to peruse the written statements put in by the parties. Mr. Sen further argued that the question of adducing evidence came in only after the written statements were perused and the parties were heard and if the parties did not choose to adduce any evidence, after they were so heard, the learned Magistrate could not compel the parties to adduce evidence. Mr. Sen contended that the written statements to be put in by the parties are to be in respect of their claims and Section 145 (1) nowhere says that the written statements have to be of the parties. Mr. Sen argued that the affidavits, annexed to the written statement, were in respect of the claim of the opposite party No. 1 and therefore the learned Magistrate could legitimately entertain and rely upon the said affidavits not as evidence adduced by the parties under sub -sec. (4) of Section 145 but as part of the written statement filed in respect of the claim of the opposite party No. 1. Mr. Balai Roy, the learned counsel appearing for D. P. Jhunjhuniwala, from whom the petitioner claimed tenancy, supported the contention of Mr. Banerjee while Mr. Parsun Ghosh, the learned counsel appearing for the opposite party Kashi Prosad Jhunjhuniwala, under whom Nanakram claimed his possession, supported the contention of Mr. Sen.;