Judgement & Order (Cav)
1. Heard Mr. T. Deuri, learned counsel for the petitioners. Also heard Mr. K. Baishya, learned Additional Public Prosecutor for the State and Md. B. Islam, learned counsel for the respondent No. 2.
2. The petitioners have filed an application under Section 528 of BNSS, seeking quashing of the impugned order dated 21.05.2025 passed by the learned CJM, Kamrup(M), in connection with Misc. Case No. 31M/2015 (arising out of Complaint case No. 3388c/2008). Petitioners were convicted and sentenced to SI for one month u/s 447 of the IPC and SI for 6 months u/s 427 of the IPC and directed to pay Rs 5,000/- compensation to the complainant u/s 357(3) of the CrPC and were also directed to restore possession of the complainant within one month u/s 456(1) of the CrPC.
3. The facts in a nutshell are that on 23.06.2008, the complainant/respondent No. 2 had filed a complaint case vide Complaint Case No. 3388c/2008, before the court of learned CJM, Kamrup(M) at Guwahati against the present petitioners inter alia alleging that on 06.04.2008, when the respondent No. 2 came out from her house for marketing, the petitioners had set her hotel on fire which was located near the National Highway at Lokhra, Guwahati. The Respondent No. 2 had further stated that she had also filed a case vide No. 190/2008 under Section 107 of CrPC before the Executive Magistrate, Guwahati and vide order dated 11.06.2008, the learned Executive Magistrate directed the petitioners to appear and execute a bond of Rs.1000/- for a period of one year to maintain public peace and tranquility.
4. The learned counsel for petitioners submits that the learned CJM, Kamrup(M), after taking cognizance of the offence under Section 447/427/354/323/34 IPC, issued processes against them. Subsequently, the learned trial court convicted the petitioners under Sections 447/427/34 IPC vide judgment dated 04.06.2010. Being aggrieved, the petitioners had preferred a criminal appeal vide Criminal Appeal No. 45/2010 before the learned Additional Sessions Judge, Kamrup(M). The learned Additional Sessions Judge while upholding the conviction, modified the sentence passed by the learned CJM, dropping the prison sentence, but left the other parts of the sentence intact.
5. It is also submitted that as directed by the learned trial court in the judgment and order dated 30.07.2011 in Criminal Appeal No. 45/2010, the petitioners deposited the fine and along with compensation amount to Rs.5,000/- before the court of learned CJM, Kamrup(M). Thereafter, although the learned CJM directed restoration of possession of the land under Section 346(1) of CPC but there was neither any specification nor any identification of the land in question in the complaint petition, statement of witnesses and the judgment. It is further stated that the complainant had filed a petition before the court learned CJM with a prayer that the petitioners may be directed to restore possession of the land in question to the complainant. The learned CJM vide order dated 10.01.2012 had held that in absence of any description of demarcate the land, there is no scope to pass a direction to the police to restore the position of the disputed land to the respondent No. 2.
6. That the respondent No. 2 then preferred a criminal revision vide Criminal Revision No. 35/2012 before the learned Sessions Judge, Kamrup(M) against the order dated 10.01.2012 passed by the learned CJM, Kamrup(M). The learned appellant court on 08.09.2014 held that once a criminal court passes an order under Section 456(1) of CPC, it cannot review its own order or refuse to enforce the same on the ground that it is in-executable because of absence of evidence with regard to the identification of the land or any other deficiency in the order.
7. It is also submitted by the learned counsel for the petitioners that on 01.09.2015, the respondent No. 2 had filed a miscellaneous case vide No. Misc. Case No. 31M/2015 before the learned CJM, Kamrup(M) with a prayer that the petitioners may be directed to appear before the court and may be directed to restore the possession of the property in question wherefrom the respondent No. 2 was dispossessed; in presence of police, and with a further direction that petitioners have to execute a written undertaking for not committing any unlawful activity, delivery of the possession of the immovable property.
8. Thereafter, the petitioners preferred a criminal petition vide Criminal Petition No. 923/2015 against the Misc. Case No.31M/2015 before this Court and the same was dismissed vide judgment and order dated 30/01/2017 and it was held that the learned trial court shall proceed with the Misc. Case No.31M/2015 without taking into account the new Schedule given by the respondent herein in the said miscellaneous case.
9. Then the learned Chief Judicial Magistrate, Kamrup (M) vide order dated 21/5/2025 in connection with Misc. Case No.31M/2015 was pleased to pass the following order : -
"...The complainant had to approach this court by filing this case to get its due relief as per the judgment and order dated 04.06.2010. It is also clear the accused persons did not deliver the possession of the land in question to the complainant despite repeated direction passed in the judgment to the effect of restoring the possession of the land to the complainant is yet to be executed even after lapse of many years. It is the onerous duty of this Court to execute and enforce the order passed in the judgment and order of the case.
It appears that vide order dated complainant was directed to produce the certified copy of the schedule of the plot of land as mentioned in Case No. 190/2008 filed before the then Learned Executive Magistrate, Kamrup (M) and same has been complied with and available with the case record.
In the backdrop of the aforesaid facts of the case, the Officer In- Charge of Garchuk Police Station is directed to take all possible legal steps/measures to ensure that the possession of the land in question (A plot of land measuring One (1) Katha, Ten (10) Lessas situated at Lakhara Chariali, Betkuchi on the right side of N.H. 37 while moving from Jalukbari to Beltola, and is covered by Dag No. 1243, Patta No. Niz-Kheraj land Under Mouza-Beltola, P.S. Garchuk in the District - Kamrup (Metro) and Bounded by North: Highway; South: Lakhimi Towar house; East: Sahi Lunthuni; West: Prabhat Das) be restored to the complainant, Smt. Sarada Devi, within 15 days from receipt of this order and submit report accordingly.
The O/C Garchuk PS shall take required assistance of concerned Circle Officer in the process.
Send a copy of this order to the O/C, Garchuk P.S. for his information and compliance.
Complainant shall take steps accordingly Fix 21.06.2025 for report of O/C Garchuk P.S."
10. The petitioners were aggrieved and dissatisfied with this order dated 21/5/2025 passed in connection with Misc. Case No.31M/2015 (arising out of Complaint Case No. 3388c/2008) by which the Court of the learned Chief Judicial Magistrate, Kamrup (M) was pleased to direct the Officer-in-Charge of Garchuk Police Station to take all possible legal steps/measures to ensure that – the possession of a plot of land bearing Dag No. 1243, Patta No. Niz-Kheraj, measuring 1 (One) Kotha 10 (Ten) Lechas situated at Lakhara Chariali, Betkuchi on the right side of N.H. 37 while moving from Jalukbari to Beltola, Mouza-Beltola, Police Station- Garchuk within the District of Kamrup (Metro) which is bounded in the North by Highway, bounded in the South by Lakhimi Towar house, bounded in the East by land of Sahi Lunthuni and bounded in the West by the land of Prabhat Das – be restored to the respondent No. 2, Smt. Sarada Devi within a period of 15 days from the receipt of the order and submit report. Accordingly, the accused/petitioners, preferred this present criminal petition for setting aside and quashing the order dated 21/05/2025 passed in connection with Misc. Case No.31M/2015 (arising out of Complaint Case No. 3388C/2008). The grounds stated in the petition are as follows :-
I. That, the respondent No. 2, Smt. Sarada Devi had mentioned about the schedule of the plot of land, however, the respondent No. 2, Smt. Sarada Devi had neither mentioned the Dag number nor the Patta number of the plot of land in the Misc. Case No.31M/2015, as such the order dated 21/05/2025 passed in connection with Misc. Case No.31M/2015 (arising out of Complaint Case No. 3388c/2008).
II. That, the Learned Chief Judicial Magistrate, Kamrup (M) has neither any authority nor any jurisdiction to pass an order for restoration of the property. The proviso to section 456 (1) of CPC states that the restoration of possession of an immovable property cannot be made by the court after a period of one month from the date of conviction. The present miscellaneous case has been filed after a period of 5 years. Further, the impugned order dated 21/05/2025 passed in connection with Misc. Case No.31M/2015 is passed after a period of 15 years from the judgment and order dated 04/06/2010 passed in Complaint Case No. 3388c/2008.
III. That, the Court of the learned Chief Judicial Magistrate, Kamrup (M) failed to appreciate the fact that this Court while dismissing the Criminal Petition No. 923/2015 had categorically stated that the new schedule of land provided by the respondent No. 2, Smt. Sarada Devi in Misc. Case No. 31M/2015 shall not be taken into consideration while proceeding with the Misc. Case No. 31/2015. The learned Chief Judicial Magistrate, Kamrup (M) was pleased to direct the respondent No. 2, Smt. Sarada Devi to produce a certified copy of the plot of land as mentioned in Case No. 190/2008 which was registered under section 107 of the Code of Criminal Procedure before the learned Executive Magistrate and the same cannot be taken into consideration as the respondent No. 2, Smt. Sarada Devi had neither mentioned about the schedule of the plot of land in her complaint nor had stated anything about the plot of land in her evidence. The respondent No. 2, Smt. Sarada Devi had not even mentioned the Dag number and Patta number of the plot of land in the complaint as well as in the Misc.
IV. That, the Court of the learned Chief Judicial Magistrate, Kamrup (M) vide order dated 19.07.2024 had directed the respondent No. 2, Smt. Sarada Devi to produce the certified copy of the schedule of the plot of land as mentioned in Case No. 190/2008 filed before the then learned Executive Magistrate, Kamrup (M), but the learned Chief Judicial Magistrate, Kamrup (M) completely overlooked the fact that the record of the Case No. 190/2008 was not called for during the trial of Complaint Case No. 3388C/2008.
V. That, the respondent No 2, Smti Sarada Devi while preferring the Misc. case had given the schedule of the land, however, the learned Chief Judicial Magistrate, Kamrup had clearly overlooked the fact that the respondent No 2, Smti Sarada Devi had nowhere in her complaint petition mentioned about the specific description or identification of the land in question nor had the same been mentioned by any witnesses.
VI. That, a close perusal of the judgment and order dated 04/06/2010 passed in connection with Complaint Case No. 3388C/2008 by which the Learned Chief Judicial Magistrate, Kamrup (M) sentenced the petitioners to undergo simple imprisonment for a period of 3 months under section 447/34 of IPC and also for a period of 6 months under section 427/34 of IPC and directed them to pay compensation to the complainant amounting to Rs 5000/- each under section 357 of CrPC and also directed restoration of possession of the land in question to the complainant under section 346 (1) of the CrPC, it can be seen that there is no specific description or identification of the land in question that is to be restored.
VII. That, if there is any dispute regarding the right, title and interest of the plot of land of the respondent No 2, Smti Sarada Devi, the respondent No 2, ought to had filed appropriate proceeding in the competent court and the same cannot be a subject matter of criminal offence.
VIII. That, the court of the Learned Chief Judicial Magistrate, Kamrup (M) failed to appreciate the fact that there is no mention of the disputed land in either the complaint case or in the evidence of the Complaint Case No. 3388c/2008 and without any description of the land, a direction cannot be passed to restore the possession of the land to the respondent No 2, Smti Sarada Devi. The direction given in the judgment and order dated 04/06/2010 regarding restoration of possession of the land is an un-executable order, yet, the learned Chief Judicial Magistrate passed vide order dated 21/5/2025 in connection with Misc. case No.31M/2015 (arising out of Complaint Case No. 3388C /2008) had arbitrarily and illegally directed the Officer-in-Charge of Garchuk Police Station to take all possible legal steps/measures to ensure that the possession of a plot of land bearing Dag No. 1243, Patta No. Niz-Kheraj, measuring 1 (One) Kotha 10 (Ten) Lechas situated at Lakhara Chariali, Betkuchi on the right side of N.H. 37 while moving from Jalukbari to Beltola, Mouza- Beltola, Police Station- Garchuk within the District of Kamrup (Metro) which is bounded in the North by Highway, bounded in the South by Lakhimi Towar house, bounded in the East by land of Sahi Lunthuni and bounded in the West by the land of Prabhat Das be restored to the respondent No. 2, Smt. Sarada Devi within a period of 15 days from the receipt of the order and submit report accordingly.
IX. That, the section 362 of the CrPC mandates that no Court when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error. The section is based on acknowledgement principle of law that once a matter is finally disposed of by a court the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error.
11. Thus, I find from the materials that Smti Sarada Devi, wife of late Megh Prasad Upadhyay of Lakhara Chariali was purportedly earning her livelihood by running a Hotel in the name and style of Sarada Hotel with GMC holding No. 208 in Ward No.17 in Lakhara Chariall nearby the National Highway 47. She used to reside in another room by the side of the Hotel with her maid servant. On 6.4.2008 she went to market by closing the Hotel along with the maid servant and on return she found that her hotel and house were set on fire by two persons namely Rajib Lunthani and Nandeswar Lunthani. Though, she reported the matter but police made no response. Thereafter, Smti Sarada Devi having no alternative continued to reside in the said place by raising one tent house but on 10.04.2008 those two persons again entered into their land and occupied the said land by damaging her property and assaulted her and because of assault she had to leave the property and filed the complaint case against the above two accused persons vide C.R. Case No. 3388C of 2008.
12. The learned trial court by order dated 04.06.2010 took cognizance u/s 447/427/354/323/34 of IPC against petitioners and directed to appear before the court. Petitioners appeared before the trial court. Respondent 2 examined 5 witnesses in support of the charge. Defence denied the charge. Petitioners were convicted and sentenced to SI for one month u/s 447 of the IPC and SI for 6 months u/s 427 of the IPC and directed to pay Rs 5,000/- compensation to complainant u/s 357(3) of the CrPC and restore possession of the complainant within one month u/s 456(1) of the CrPC.
13. As already stated, accused filed an appeal (criminal appeal 45/2010) before the learned Additional Sessions Judge, Kamrup(M). Respondent 2 appeared in the case. The learned appellate court by order dated 30.7.2011 modified the sentence to fine of Rs 2,000/- and in default to SI for 3 months u/s 427/34 of the IPC and a fine of Rs 300/- and in default to SI for 15 days u/s 447/34 of the IPC and directed the accused to appear before the trial court by 1 September 2011 to deposit the said Rs 5,000/- compensation.
14. Now, it is important to note that in the judgment and order of this Court dated 30.01.2017, in criminal petition No. 923/2015, there was a specific direction that the Misc. Case No. 31M/2015 pending before the learned court below is to be proceeded with, without - however taking into account the new schedule of the property given by the petitioner in the said case. As also mentioned in para 8 of the aforesaid judgment and order of this Court, Misc. Case No. 31M/2015 came to be registered after the complainant/respondent No. 2 herein filed an application for restoration of position of the property in C.R. Case No. 338c/2008.
15. In the earlier court direction, the revisional courts have held that it is the duty of the court to enforce his own order and as the criminal court cannot also review its own order – therefore, the court which passed the order of restoration of possession invoking section 456(1) CrPC, cannot now say that the order is not enforceable or nonexecutable for want of description/ identification of the property. The said findings/observations of the revisional courts also referred to para 13 of the judgment of this Court in Crl. Pet No. 923/2015 dated 30.01.2017.
16. After referring to the aforesaid findings and observations of the revisional courts below in the earlier round of litigation, this Court in the order dated 30.01.2017 sent back the matter to the learned trial court to carry out the order of restoring possession. In the order dated 06.06.2017 passed by the learned trial court in the aforementioned Misc. Case No. 31M/2015 – it has been stated that – the complainant/petitioner was in possession of Sarada Hotel which was gutted down, with holding No. 208 in ward No. 17 by the side of the National Highway No. 37 and she was dispossessed by the accused. From the complaint petition, it appears that the petitioner had given the measurement of the land as more or less 1 and ½ Katha.
17. In the order dated 09.01.2025, passed by the learned trial court in Misc. Case No. 31M/2015, it was stated that there is no patta number mentioned in the schedule of the land in the proceeding under 107 CrPC and in the schedule in the proceeding under Section 145/146 CrPC. Accordingly, the respondent/complaint was directed to produce certified copy of the land as mentioned in the proceedings before the Executive Magistrate. The court then proceeded to direct the O/C, Gorchuk police station to submit details status along with photographs of the permanent present in the schedule plot of land measuring One (1) Katha, Ten (10) Lessas situated at Lakhara Chariali, Betkuchi on the right side of N.H. 37 while moving from Jalukbari to Beltola, and is covered by Dag No. 1243, Patta No. Niz-Kheraj land Under Mouza-Beltola, P.S. Garchuk in the District - Kamrup (Metro) and Bounded by North: Highway; South: Lakhimi Towar house; East: Sahi Lunthuni; West: Prabhat Das. Thereafter, the order dated 21.05.2025 passed in the said miscellaneous case direction was passed in regard to the above described land for restoring its possession to the complainant/respondent No. 2 within 15 days.
18. In the order dated 30.01.2017 passed by this Court, it has been observed in para 12 that the order directing restoration of possession still holds the field and the question of limitation would also not come in vis-à-vis of the proviso to Section 456(1) CrPC as the said order for restoration was passed at the time of disposal of criminal case convicting and sentencing the accused persons. As already mentioned above, in the order dated 21.05.2025, the learned trial court observed that vide order dated 19.07.2024, the complainant was directed to produce certified copies of the schedule of the land mentioned in Case No. 190M/2008 filed before the then Executive Magistrate, Kamrup(M). Accordingly, the said schedule was furnished in terms of the order of the trial court and on the basis of the same, after obtaining a report from the concerned OC, Gorchuk P.S., the order dated 21.05.2025 was passed directing restoration of possession.
19. Since there was a specific direction in the earlier round of litigation in order dated 30.01.2017 passed by this Court in Crl. Pet. No. 923/2015 para 20 – the learned trial court while passing the impugned order dated 21.05.2025 could not have taken into account the new schedule given by the petitioner in the said case from a collateral proceedings pertaining before the Executive Magistrate. To that extent, the impugned order dated 21.05.2025 can be said to suffering from exceeding jurisdiction and material irregularity and is required to be interfered with in this criminal petition.
20. However, the complainant is stated to be an elderly lady having to knock the doors of the court ever since her stated dispossession in 2008.
21. Given the fact that there was a specific order in her favour for restoration of possession by the criminal court after conclusion of trial and which still holds the field, as already stated above – therefore, the said complainant/respondent No. 2 cannot be left without any remedy and the arm of justice must do something to come to her aid.
22. Upon perusing the judgment and order dated 04-06-2010, I find that the learned trial court CJM, Kanpur(M), while passing the order for restoring possession under section 456(1) CrPC – did not specify the property; however, upon perusing the judgment, I find that in the first paragraph itself, the learned trial court has stated the description of the property. The relevant lines of para 1 may be reproduced below –
“……running one Hotel in the name and style of Sarada Hotel with GMC Holding No. 208 in Ward no. 17 by the side of National Highway 37. She used to live in another rooms by the side of the Hotel with her main servant…..”
23. The criminal case was filed alleging offences of criminal course, trespass, mischief etc. with regard to the said property and after completion of trial, the learned trial court finding the accused guilty convicted and sentenced the accused persons and directed restoration of possession of the property. It is clear that the learned trial court directed restoration of possession to the victim of the property described as above and which finds mention in paragraph 1 of the judgment. Therefore, I am of the considered view that it is not a case of the property not being identified and the direction for possession under section 456(1) CrPC being non-executable.
24. Accordingly, the impugned order dated 21-05-2025 is hereby modified and it is directed that the respondent/Sarada Devi shall be restored back possession of the property of the following description :
“……running one Hotel in the name and style of Sarada Hotel with GMC Holding No. 208 in Ward no. 17 by the side of National Highway 37. She used to live in another rooms by the side of the Hotel with her main servant…..”
25. Since the impugned order dated 21.05.2025 stands modified in terms of directions of this judgment and order, to that extent, the stay of further proceedings of Misc. Case No. 31M/2015 arising out of Complaint Case No. 3388c/2008 is hereby vacated.
26. The above directed restoration of the property shall be completed positively within a period of 1(one) month from the date of this order i.e. on or before 09.01.2026.
27. For this purpose, a copy of this judgment and order shall be sent to the court of the learned CJM, Kamrup(M) and also to the O/C, jurisdictional police station i.e. Gorchuk police station, Kamrup(M), Guwahati.
28. In view of the above, the criminal petition stands partly allowed and disposed of accordingly.
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