In the Supreme Court of Bangladesh High Court Division

(Criminal Revisional Jurisdiction) Present:

Mr. Justice Ashish Ranjan Das And

Mr. Justice Md. Riaz Uddin Khan

Criminal Revision No. 3074 of 2022

In the matter of:

An application under Section 439 read with section  435  of  the  Code  of  Criminal Procedure

In the matter of:

Anowar Hossain and others

---1st Party-Appellant-Petitioners -VERSUS-

The State and others

--- 2nd Party-Respondent-Opposite Parties Mr. S.M. Jahangir Alam, Advocate

--For the Petitioners Mr. Tirtha Salil Pal, Advocate

---For the Opposite Party Nos. 2-4 Mr. S.M. Asraful Hoque, D.A.G with

Mr. Sheikh Serajul Islam Seraj, D.A.G

Ms. Fatema Rashid, A.A.G

Mr. Md. Shafiquzzaman, A.A.G. and

Mr. Md. Akber Hossain, A.A.G

-----For the State

Heard and Judgment on 21.11.2023

Md. Riaz Uddin Khan, J: 

Rule was issued on an application filed under Section 439 read with section 435 of the Code of Criminal  Procedure  calling  upon  the  opposite parties to show cause as to why the judgment and order dated 28.04.2022 passed by the Sessions Judge, Dhaka in Criminal Appeal No. 196 of 2022 summarily  dismissing  the  appeal  and  thereby upholding the order dated 11.04.2022 passed by the Executive Magistrate, Dhaka in Petition Case No.

02 of 2019 under section 145 of the Code of Criminal Procedure discharging the opposite party Nos. 2-4 should not be set aside and/or such other or further order or orders be passed as to this Court may deem fit and appropriate.

The brief facts for disposal of this case is that one Md. Shahidul Islam as attorney of the 1st party-petitioners on 07.01.2019 filed an

application under Section 145 of the Code of Criminal Procedure being Petition Case No. 02 of 2019 in the Court of Executive Magistrate, Dhaka against the opposite parties alleging inter alia that the petitioners inherited the schedule land from their father and were in peaceful possession by planting various kind of trees and paying due Government Revenue through Mutation Khatian No.736, and 759/6. On 03.01.2019 opposite party Nos.1-3 along with 10-15 others came to the scheduled land with bricks, sand cement etc and tried to build a wall but were drove away by the petitioners. The opposite party Nos.1-2 along with 20-25 others  on  05.01.2019  again  came  to  the scheduled  land  and  were  drove  away  from scheduled  land  with  the  help  of  the neighbours. In the above circumstances, the petitioners on the apprehension of breach of

peach filed the case under section 145 of the Code of Criminal Procedure.

On receipt of the above application, the Executive Magistrate, Dhaka by his order dated 07.01.2019 directed the Officer-in-Charge of Dohar Police Station, Dhaka to submit inquiry report in respect of the possession of the land in question and also directed to maintain the  law  and  order  between  the  parties regarding the land in question.

The  Assistant  Commissioner  (land) submitted a report on 14.07.2019 referring a report of the Kanungo (in charge) of Upazila land  Office,  Dohar  who  enquired  into  the matter and submitted report on 14.07.2019 on the finding that the second party are in the possession of 0.14 acres of the scheduled land including the disputed 0.07 acres of land from 22.03.2019 by erecting 3 tin-shed houses and further stated that the 1st party-petitioners was in possession before that date.

On receipt of the above inquiry report, the learned Executive Magistrate, Dhaka by his order  dated  11.04.2022  was  pleased  to discharge the 2nd party opposite parties Nos.2- 4 from the case on the finding that the 2nd parties are in possession of the disputed land.

Being aggrieved thereby the order dated 11.04.2022 passed by the Executive Magistrate, Dhaka the first parties preferred Criminal Appeal No. 196 of 2022 before the learned Sessions Judge, Dhaka who after hearing by his impugned judgment and order dated 28.04.2022 summarily dismissed the appeal and thereby affirmed the order dated 14.04.2022 passed by the Executive Magistrate, Dhaka.

Mr. S.M. Jahangir Alam, learned Advocate for the 1st party-Appellant-petitioners submits that the proceeding was started on 07.01.2019 and the learned magistrate passed the order on 07.01.2019 directing the parties to maintain peace in relation to the disputed land but it appears from the inquiry report that the 1st party-petitioners were dispossessed from the disputed land on 22.03.2019 but the learned executive  magistrate  as  well  as  learned Sessions Judge failed to assess and consider the provision of sub-sections 4 and 6 of the section 145 of the Code of Criminal Procedure.

He  further  submits  that  the  Appellate Court below committed an error of law in passing  the  impugned  judgment  and  order without  discussing  the  relevant  law  and evidence  and  in  the  absence  of  any  such

observation  dismissed  the  appeal  which  is liable to be set aside.

On the other hand the 2nd party-opposite party  Nos.  2-4  filed  a  Counter  Affidavit stating inter alia that the opposite party No. 2 became the owner of the disputed land from the opposite party No.3 through registered Deed of Heba Bil Ewaaj No. 81 dated 13.01.2014 and  took  possession  of  the  same  and accordingly on 01.06.2014 mutated his name in the disputed land in Mutation Khatian No. 678 and has been paying all government taxes since then.

That while the opposite party No. 2 became the owner and possessor of the suit land and was enjoying the same, the relatives of the present petitioners tried to oust him from the suit land but eventually failed because of the active protest of the opposite party No. 2 along with his neighbors. Upon such situation, on 18.02.2014 the opposite party No.2 through his constituted attorney filed Petition Case

No. 116 of 2014 under section 145 of the Code of Criminal procedure before the Executive Magistrate, Dhaka who upon hearing was pleased to direct the Office in Charge, Dohar Police Station to enquire into the matter as well as to  take  steps  for  maintaining  peace  in

relation to the suit land. Upon receipt of the said order the Office-in-Charge, Dohar Police Station directed a Sub Inspector of his Police Station to enquire into the matter and submit report. Accordingly, one Shiv Shankar Banik, Sub-Inspector  after  inquiry  submitted  his report  before  the  learned  Executive Magistrate, Dhaka through the said Office-in- Charge, Dohar police Station on 03.03.2014. In the said report it was clearly stated that the petitioner of the said Petition Case No. 116 of 2014, i.e, the present opposite party No. 2 of  the  instant  criminal  revision,  was  in peaceful  possession  of  the  suit  land. Subsequently  in  different  occasions  the petitioners and his relatives took steps to hinder the peaceful possession of the opposite party No.2 over the suit land and tried to harass him in various ways. In such an attempt the petitioners filed the instant Petition Case No. 02 of 2019 under section 145 of the Code of Criminal Procedure as a test case with all  false  and  fabricated  allegations.  The opposite party No. 2 duly contested the same by filing written statement and eventually the said Petition Case No. 02 of 2019 was rightly dismissed. After being the owner of the suit land  opposite  party  No.2  has  duly  been

enjoying the possession of the same and he has never been dispossessed from the suit land. The petitioners were never in the possession of the suit land.

Mr. Tirtha Salil Pal, learned Advocate appearing on behalf of the opposite parties submits  that  the  petitioners  lodged  the Petition Case No. 02 of 2019 under section 145 of the Code of Criminal Procedure before the learned Executive Magistrate, Dhaka mentioning the incidents of 03.01.2019 and 05.01.2019 and the learned Executive Magistrate following the due procedure of law accordingly discharged the opposite parties from the allegations and kept  the  case  with  record.  In  such circumstance, after 4 years and 11 months there cannot be any apprehension of breach of peace  on  the  suit  land  upon  the  alleged incidents. Therefore, there is no scope to provide with any lawful remedy in the instant revisional  application  towards  the  alleged incident and, thus, the subject matter of the instant  revisional  application  has  no efficacy.

He then submits that in the concerned inquiry  reports  it  has  been  precisely mentioned that the opposite party No. 2 has been  in  the  possession  of  the  suit  land

through his attorney hence, there is no scope to institute any case on the part of the petitioners under section 145 of the Code of Criminal Procedure and both the courts below rightly dismissed the case of the petitioners. 

He  finally  submits  that  the  claim  of ownership or recovery of possession by the petitioners may be adjudicated by a competent civil court on appropriate recourse of law. It is not possible to decide the same in a proceeding under section 145 of the Code of Criminal Procedure hence, neither the original petition  case  nor  the  instant  revisional application are maintainable in the eye of law.

We  have  heard  the  learned  Advocate, perused  the  application  along  with  the annexures. On going through the materials on record available before us it appears that 1st party petitioners apprehended breach of peach on  the  basis  of  allegation  of  threat  of dispossession from the case land on 03.01.2019 and 05.01.2019 and meanwhile almost 5(five) years have been passed. It further appears that the trial court after considering the documents filed by the parties including the inquiry  report  discharged  the  2nd  party opposite parties on the finding that not the

1st  party  but  the  2nd  parties  are  in  the possession  of  the  case  land.  The  lower appellate  court  also  dismissed  the  appeal after examining the relevant documents of both the parties. The 1st party petitioners could not  prima  facie  prove  their  case  for initiating proceeding against the 2nd party opposite parties and to take evidence. The trial court as well as appellate court below rightly  dismissed  the  case  and  we  cannot pursued ourselves on the submission of the learned  advocate  for  the  petitioners  to interfere with the decisions of the courts below against the concurrent findings of fact. The Rule has no merit which is destined to fail.   

In the result, the Rule is discharged. Communicate  the  Judgment  and  order  at

once. 

Ashish Ranjan Das, J:

I agree.

Ziaul Karim Bench Officer