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Baida Nath Majumdar Vs. Nibaran Chunder Ghose - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal242
AppellantBaida Nath Majumdar
RespondentNibaran Chunder Ghose
Cases ReferredChathu Rai v. Niranjan Bai
Excerpt:
criminal procedure code (act v of 1898) section 145 - subordinate magistrate, refusal to take proceedings--institution of such proceedings by district magistrate on same police report--jurisdiction. - .....in the case of chathu rai v. niranjan rai (1893) i. l. r. 20 calc. 729. held that the order of another magistrate striking off a case under section 145 on the ground that there was no immediate apprehension of a breach of the peace was ultra vires, and he restored the former case under section 145 and transferred it to another magistrate. in the case now before us, there was no proceeding under section 145. the magistrate expressed the opinion on a police report that there was no ground for such proceeding. the district magistrate on the same police report expressed a different opinion and, on that police report, he took proceedings under section 145. we cannot find that the order of the magistrate declining to take proceedings under section 145 can operate as any bar to the action of.....
Judgment:

Prinsep and Stephen, JJ.

1. On receipt of a police report to the effect that there was a breach of the peace likely to take place between certain persons in consequence of a dispute con-corning land, the Magistrate found that there were no sufficient grounds for proceeding under Section 145 of the Code of Criminal Procedure. One of the parties to the dispute then moved the District Magistrate to proceed. The District Magistrate thereupon recorded a proceeding under Section 145 of the Code of Criminal Procedure, on the 20th July, within the terms of Sub-section (1), and it further appears that, on its being afterwards brought to his notice that certain persons, who were concerned in such dispute, came within the terms of a decision of this Court in the case of Ram Chandra Das v. Monohur Roy (1893) I. L. R. 21 Calc. 29., he drew up a fresh proceeding so as to make these persons parties. The objection that has been raised before us is that under the authority of the case of Chathu Rai v. Niranjan Rai (1893) I. L. R. 20 Calc. 729. such an order could not be passed, the District Magistrate having no jurisdiction. It seems to us that the present case and that case are distinguishable. The District Magistrate in the case of Chathu Rai v. Niranjan Rai (1893) I. L. R. 20 Calc. 729. held that the order of another Magistrate striking off a case under Section 145 on the ground that there was no immediate apprehension of a breach of the peace was ultra vires, and he restored the former case under Section 145 and transferred it to another Magistrate. In the case now before us, there was no proceeding under Section 145. The Magistrate expressed the opinion on a police report that there was no ground for such proceeding. The District Magistrate on the same police report expressed a different opinion and, on that police report, he took proceedings under Section 145. We cannot find that the order of the Magistrate declining to take proceedings under Section 145 can operate as any bar to the action of the District Magistrate. The present case, therefore, is a new case under Section 145, whereas in the case of Chathu Rai v. Niranjan Bai (1893) I. L. R. 20 Calc. 729. the old case was revived by the order of the District Magistrate. The rule is therefore discharged.


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