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Thakur Pandey Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.798
AppellantThakur Pandey
RespondentEmperor
Cases ReferredIn Emperor v. Ram Baran Singh
Excerpt:
criminal procedure code (act v of 1898), sections 107, 145 - dispute relating to land likely to cause breach of the peace--discretion of magistrate. - - the magistrate often does well to take action under section 107. it is open to the petitioners in the present case to move the magistrate having jurisdiction to take action under section 145, if they make out a proper case......is trying to set aside a possession of long standing on their own authority with the result, the learned magistrate says, that a great riot will take place in pargana duaba; he accordingly bound down the petitioners before me and required that they should give security for keeping the peace for one year.3. i am asked to interfere with this order on the ground that the dispute being a dispute in regard to immoveable property, the magistrate should not have acted under section 107, and in support of this contention 1 am referred to the case of mahadeo kunwar v. bisu 25 a. 537 : a.w.n. (1903) 102. in that case, an order has been passed under section 147 of the code of criminal procedure, without any of the procedure prescribed by section 145 being adopted, and that order was set aside as.....
Judgment:

George Knox, J.

1. A Magistrate of the first class, after taking evidence, came to the conclusion that there was great probability of a breach of the peace.

2. There is apparently between the parties a dispute relating to immoveable property, and according to the Magistrate, one party is trying to set aside a possession of long standing on their own authority with the result, the learned Magistrate says, that a great riot will take place in Pargana Duaba; he accordingly bound down the petitioners before me and required that they should give security for keeping the peace for one year.

3. I am asked to interfere with this order on the ground that the dispute being a dispute in regard to immoveable property, the Magistrate should not have acted under Section 107, and in support of this contention 1 am referred to the case of Mahadeo Kunwar v. Bisu 25 A. 537 : A.W.N. (1903) 102. In that case, an order has been passed under Section 147 of the Code of Criminal Procedure, without any of the procedure prescribed by Section 145 being adopted, and that order was set aside as an order passed without jurisdiction. The learned Counsel relies upon certain dicta contained in the judgment in which it was laid down that where a. report was made by the Police that a dispute likely to cause a breach -of the peace existed between the parties concerned regarding certain land, the Magistrate should have proceeded in the manner prescribed in Section 145 and not under Section 107, but the learned Judge has been careful to add that it was not necessary to decide, for the purposes of this case, whether the fact of the Magistrate having been informed that a dispute existed in regard to land, ousted his jurisdiction to take proceedings under Section 107.'

4. I was also referred 1o the case of Balajit Singh v. Bhoju Ghose 35 C. 117 : 12 C.W.N. 487 : 6 C.L.J. 697 : 6 Cr.L.J. 398. The learned Judges in that case holding that as the language of Section 145 was mandatory and that of Section 107 contained words which were discretionary, the order passed under Section 107 of the Code of Criminal Procedure, when there was a dispute relating to land, was an order which should be set aside. I find, however, in the case of Sheoraj Roy v. Chatter Roy 32 C. 966 : 2 Cr.L.J. 769 : 10 C.W.N. 288, the learned Judges of same High Court held that where a dispute relating to possession of land is likely to cause a breach of the peace, a Magistrate has a discretion to proceed either under Section 107 or under Sections 144 and 145 of the Criminal Procedure Code.

5. In Emperor v. Ram Baran Singh 28 A. 406 : A.W.N. (1906) 61 : 3 Cr.L.J. 323, the learned Judge of this Court held that a Magistrate under similar circumstances might legally take action under Section 107 of the Code of Criminal Procedure. With that view, I entirely concur.

6. It is a matter of experience that cases coming under Section 145 are, as a rule, cases long drawn out, and in the interval it is more than probable that owing to the hot blood excited over the matter, a breach of the peace might occur. The Magistrate often does well to take action under Section 107. It is open to the petitioners in the present case to move the Magistrate having jurisdiction to take action under Section 145, ' if they make out a proper case. I have no doubt that the Magistrate will take the necessary steps.

7. I find too cause for interference and dismiss the application.


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