Malay Kumar Basu, J. - (1.) This is a revisional application under Section 482 of the Code of Criminal Procedure preferred against the order dated 29th October, 1998 passed by the learned Sub-Divisional Executive Magistrate, Asansol in Misc. Case No. 207 of 1998 under Section 145 of the Code of Criminal Procedure and against Order No. 8 dated 13th July, 1999 passed by Shri P. K. Sarkar, learned Additional Sessions Judge, Asansol in Criminal Motion No. 2 of 1999. The relevant facts leading to the present application may be summarised as follows:- On 29th October, 1998, the opposite party No. 1 filed an application under Sections 144/107/145 of the Code of Criminal Procedure before the Court of the Sub-Divisional Executive Magistrate, Asansol alleging, inter alia, that he along with the petitioner Nos. 1, 2 and 3, namely, Shyam Sundar ; Dilip Kumar and Dinesh Kumar Agarwalla were running a Motor Vehicles keeping garage at the disputed premises being R. S. Plot Nos. 271 and 416 under R. S. Khatian No. 399 in Mouza Barakar, Police Station-Kulti, District-Burdwan since the month of January 1990 and the learned Munsif, Asansol in T. S. No. 2 of 1998 declared the said property as one belonging to Hindu Joint Mitakshara family. In that petition, it was further stated by the opposite party No. 1 that the petitioner Nos. 1, 2 and 3 with the help of the other petitioners who were his employees were trying to evict him and the other owners from the said garage and they being dangerous people there was apprehension of breach of peace and hence he made the prayer for an order restraining them from dispossessing him and also for appointment of Receiver under Sections 144, 145 and 107 of the Code of Criminal Procedure. On the basis of such allegations, the learned Executive Magistrate on that very date, that is, 29th October, 1990 drew up a proceeding under Section 145 of the Code of Criminal Procedure directing these petitioners to appear before him and filed their written statement. Being aggrieved by this order, they filed a Criminal Motion in the Court of the learned Sessions Judge, Burdwan and the learned Additional Sessions Judge, Asansol ultimately heard and disposed of that Motion. The Motion was dismissed by the learned Judge and both the parties were directed to appear before the learned Magistrate to submit their written statement in support of their respective claims over the disputed garage. Being aggrieved by that order again, they have preferred the present revisional application. The ground on which the learned Additional Sessions Judge dismissed the Criminal Motion was that by the impugned order, the rights or liabilities of the parties had not been affected in any way since by that order, the learned Magistrate only directed them to appear before him and to submit their written statements in support of their respective claims and no prejudice was caused thereby to their interests and hence, the learned Judge did not consider the Criminal Motion to be maintainable at all.
(2.) The learned Advocate appearing on behalf of the petitioners Shyam Sundar Agarwalla and others contends that the learned Magistrate started a proceeding under Section 145 of the Code of Criminal Procedure solely relying on the averments made in the petition and the affidavit of the opposite party No. 1 and without obtaining any report from any Police Officer or any other responsible Officer about the State of actual possession relating to the land in dispute. Secondly, the learned Magistrate failed to consider the fact that the Title Suit being No. 36 of 1997 was pending in the Court of the learned Second Munsif, Asansol wherein a petition for appointment of Receiver was also pending for disposal and thirdly, that Trade Licence issued by the concerned Kulti Municipality, Electricity Bills issued by the West Bengal State Electricity Board and professional tax receipts in respect of the disputed garage show that the opposite party No. 1 was not at all a partner in respect of the said garage and the petition tiled by him before the learned Magistrate was false and a harassing one. The next contention advanced by the learned Advocate for the petitioner is that the parties being co-owners of the disputed property and having in joint possession thereof, proceeding under Section 145 of the Code of Criminal Procedure cannot be attracted to such a case and both the Courts below ignoring this position of law fell in to error.
(3.) The impugned order is an order passed under Section 145(1) of the Code of Criminal procedure. By this order, the learned Magistrate has only initiated a proceeding under this section and directed the parties to appear before him and filed written statement, if any, regarding their respective claims. The pre-conditions to be fulfilled before such an order can be passed under Section 145 of the Code of Criminal Procedure are: firstly, that there must be a dispute relating to some land, etc., secondly, that the Magistrate must be satisfied from a police report or other information that the dispute is likely to cause a breach of the peace and thirdly, the land must be situated within his jurisdiction.;