In The Supreme Court of Bangladesh

  High Court Division

  (Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

              MR. JUSTICE KHANDAKER DILIRUZZAMAN

CRIMINAL MISCELLANEOUS CASE NO. 1840 OF 2000

Bibhuti Halder......….…...Accused Petitioner 

-Versus-

The State….….....Opposite party

None appears............For the accused petitioner Mr. Imran Ahmed Bhuiyan, DAG with

Mr. Mehadi Hasan (Milon), AAG and

Ms. Aleya Khandker, AAG

........For the state Judgment on: The 10th of August, 2023

ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the accused petitioner under section 561A of the Code of Criminal  Procedure,  1898  calling  upon  the  opposite parties to show cause as to why the judgment and order dated  05.07.1999  so  far  it  relates  to  appointment  of receiver  passed  by  the  Additional  Sessions  Judge,  1st Court,  Khulna  in  Criminal  Revision  No.  41  of  1999 allowing the criminal revision and thereby reversing the order  dated  22.03.1999  passed  by  the  Magistrate,  1st Class, Khulna in Non FIR Case No. 36 of 1994 drop the proceeding  of  section  145  of  the  Code  of  Criminal Procedure should not be quashed and/or such other or

further order or orders passed as to this Court may seem fit and proper.

For disposal of the Rule, the relevant facts may briefly be stated as follows:

That one A.B.M. Fazlul Karim, Inspector of police as complainant filed a Non FIR Case No. 36 of 1994, corresponding to Non G.R. No. 75 of 1994 before the Magistrate, 1st Class, Khulna treating the petitioner as first party and the opposite party No. 1 as second party alleging inter alia that on the basis of the information he came to know that on 21.12.1994 the second party Dr. Giasuddin  forcibly  harvesting  the  paddy  from  the schedule land which was also claimed by the 1st party. Accordingly,  the  notice  was  served  upon  the  both parties. Papers of both parties were consulted but it was difficult  to  come  to  a  conclusion,  since  the  land  in question was claimed by both parties. It is further stated that regarding the land in question several civil suit are pending  before  the  Courts.  Since,  there  is  an apprehension of breach of peach in connection with the loan in question, a proceeding under section 145 of the Code of Criminal Procedure is required to be started. On the  basis  of  the  said  petition,  the  learned  Magistrate, initiated the proceeding under section 145 of the Code of Criminal  Procedure  and  thereby  attached  the  land  in question and appointed a receiver over the said land. Thereafter, both parties appeared before the Court below and submitted a written statement and also adduced their evidence.  After  conclusion  of  evidence,  the  learned Court  below  drop  the  said  proceeding  along  with  a direction to hand over the sale proceeds of the output of the land in question to the second party as he was in possession  of  the  said  land  vide  its  order  dated 22.03.1999. As against the said order, the petitioner 1st party  preferred  a  Criminal  Revision  No.  41  of  1999 before the Court of Sessions Judge, Khulna which was heard  by  the  Additional  Sessions  Judge,  1st  Court, Khulna.  After  haring  of  both  parties,  the  learned Additional  Judge,  Khulna  allowing  the  said  Criminal Revision vide its order dated 05.07.1999 and thereby set aside  the  order  dated  22.03.1999  passed  by  the Magistrate, 1st Class, Khulna in Non FIR Case No. 36 of 1994 along with direction to keep continue the order of appointment  of  receiver  passed  by  the  Magistrate,  1st Class, Khulna till to appointment of receiver or to settle the right of title or possession of the land in question by

the civil Court. Being aggrieved, the petitioner 1st party preferred this application before this Court under section 561A of the Code of Criminal Procedure for quashing the impugned order dated 05.07.1999 passed in Criminal Revision  No.  41  of  1999  so  far  as  it  relates  to appointment of receiver and obtained the instant Rule and stay.     

No  one  appears  for  the  accused  petitioner  to support the Rule.

However,  the  petitioner  has  stated  in  his application that since the Revisional Court allowed the Revision case on a finding that first party-petitioner has been in possession of the case land in view of which the appointment of receiver with regard to the case land is unwarranted and abuse of the process of Court and thus this portion of the operative part of the order is liable to be quashed.

It  is  further  stated  that  since  the  order  of  the Magistrate Court has been set aside in revision, hence the order of appointment of receiver is against the norms of  judicial  proceeding  and  as  such  it  is  liable  to  be deleted from the operative portion of the impugned order

passed by the of the learned Additional Sessions Judge, Khulna.

None  appears  for  the  opposite  party  No.  1  to oppose the Rule.

The only issue for determination of this Rule, is to see whether the impugned order dated 05.07.1999 passed in Criminal Revision No. 41 of 1999 so far as it relates to appointment of receiver is liable to be quashed.

On  perusal  of  the  petitioner’s  application  along with the impugned judgment and order it transpires that regarding the schedule land the opposite party No.1 (2nd party) earlier filed a Title Suit No. 96 of 1991 against the petitioner 1st party and obtained a temporary injunction. As against the said order, the father of the petitioner 1st party preferred an Appeal No. 747 of 1991 before the Hon’ble High Court and obtained the order of status quo over the land in question. We have further noticed that regarding the land in question, the petitioner 1st party also filed another Title Suit No. 46 of 1990 and obtained the order of temporary injunction which is still pending. We have to keep in mind that the civil Court is the only competent  authority  to  decide  the  right  title  and possession of the case land in question.

In such view of the aforesaid legal position, the learned Additional Sessions Judge, 1st Court rightly set

aside  the  order  dated  22.03.1999  passed  by  the Magistrate, 1st Class, Khulna in Non FIR Case No. 36 of

1994, corresponding to Non G.R. No. 75 of 1994 along with direction to keep continue the order of appointment of receiver passed by the Magistrate, till to appointment of receiver or to settle the right of title or possession of the case land by the civil Court, which does not call for any interference by this Court under the jurisdiction of section 561A of the Code of Criminal Procedure.

Under  the  given  facts  and  circumstances  of  the case and the reasons as stated above, we do not find any substance of this Rule.

As a result, the Rule is discharged.

Communicate the judgment and order at once.

Khandaker Diliruzzaman, J:

I agree