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Kulada Kinkar Roy Vs. Danesh Mir - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal33
AppellantKulada Kinkar Roy
RespondentDanesh Mir
Cases ReferredGulraj Marwari v. Sheik Bhatoo
Excerpt:
breach of the peace - chur--police report, contents of--extraordinary juris-diction of the high court--possession--criminal procedure code (act v of 1898) section 145--charter act (24 & 25 vie. c. 104) section 15. - .....made an order for attachment under section 146, as none of the parties was in his opinion in undisputed possession of the chur. we are now invited to set aside this order, the validity of which is challenged on three grounds, namely, first that the initial order recorded by the deputy magistrate does not embody a statement of the grounds upon which he was satisfied that a dispute likely to cause a breach of the peace existed; secondly, that the police report upon which the deputy magistrate founded the initial order does not disclose any sufficient reason for the initiation of proceedings under section 145 of the criminal procedure code; and thirdly, that the deputy magistrate has failed to give effect to a previous order relating to the same property under section 530 of act x of.....
Judgment:

Rampini and Mookerjee, JJ.

1. This is a Rule issued by this Court under Section 15 of the Charter Act upon an application made by the petitioner, who was the first party to a proceeding under Section 145 of the Criminal Procedure Code, calling upon the District Magistrate of Faridpore to show cause why an order under Section 146 of the Code should not be set aside. It appears that on the 2nd October 1904 the Sub-Inspector of Police of Shibchur submitted a report to the Deputy Magistrate of Madaripur that a dispute likely to cause a breach of the peace existed concerning a large tract of newly-formed chur land lying within his jurisdiction. On the 7th October the Magistrate drew up a proceeding under Section 145 of the Criminal Procedure Code, and as the case appeared to him to be one of emergency, he also directed the attachment of the subject-matter of dispute pending his decision under the section. The procedure laid down in the section was followed, and after a full inquiry into the question of possession of the respective claimants, on the 31st March 1905, the Deputy Magistrate made an order for attachment under Section 146, as none of the parties was in his opinion in undisputed possession of the chur. We are now invited to set aside this order, the validity of which is challenged on three grounds, namely, first that the initial order recorded by the Deputy Magistrate does not embody a statement of the grounds upon which he was satisfied that a dispute likely to cause a breach of the peace existed; secondly, that the Police Report upon which the Deputy Magistrate founded the initial order does not disclose any sufficient reason for the initiation of proceedings under Section 145 of the Criminal Procedure Code; and thirdly, that the Deputy Magistrate has failed to give effect to a previous order relating to the same property under Section 530 of Act X of 1872, and a decree of a Civil Court, which decided the question of title in favour of the present petitioner. In our opinion none of these contentions can be successfully maintained, and no ground has been established to justify the interference of this Court.

2. As regards the first point taken on behalf of the petitioner, it is sufficient to refer to the decision of the Full Bench of this Court in the case of Khosh Mahomed Sircar v Nazir Mahomed(1905) 9 C.W.N. 1065, which shows that a reference by a Magistrate in the initial order to the Police Report, which clearly sets out the likelihood of a breach of the peace, is a sufficient statement of the reasons of his being satisfied of the existence of a dispute likely to cause such breach of the peace. The first ground, therefore, fails and must be over-ruled.

3. The second ground upon which the validity of the final order is attacked, namely, that the Police Report upon which the initial order was based does not disclose any sufficient reason for the initiation of the proceedings, resolves itself into two branches. It is argued, in the first place, that the Police Report does not set out any facts from which the inference could be legitimately drawn that there was any likelihood of a breach of the peace at the time when the initial order was made, that consequently the Magistrate had no jurisdiction to initiate proceedings, and that a finding arrived at in the course of the trial could not cure this defect and confer upon him a jurisdiction which he did not possess. It is argued, in the second place, that in any event the Police Report does not show that a breach of the peace was imminent, and that, accordingly, there was no foundation for the exercise of the jurisdiction which the Magistrate assumed. In support of the first branch of the contention, reliance is placed upon the cases of Rajah Run Bahadoor v. Ranee Tikssuree Koer (1874) 22 W.R. Cr. 79, Puddomonee Dassee v. Juggodumba Dassee (1875) 25 W.R. Cr. 2, Gobind Chunder Moitra v. Abdool Sayad (1881) I.L.R. 6 Calc. 835, Dhanput Singh v. Chatterput Singh (1893) I.L.R. 20 Calc. 513 and Anesh Mollah v. Ejaharuddi (1901) I.L.R. 28 Calc. 446. In support of the second branch of the contention, reliance is placed upon the cases of In the matter of Kunund Naraiu Bhoop (1878) I.L.R. 4 Calc. 650, Uma Churn Santra v. Beni Madhub Roy (1880) 7 C.L.R. 352, Gobind Chunder Moitra v. Abdool Sayad (1881) I.L.R. 6 Calc. 835, Damodur Biddyadhur Mohapatro v. Syamanund Dey (1881) I.L.R. 7 Calc. 385, Kali Kissen Tagore v. Anund Chunder Roy (1896) I.L.R. 23 Calc. 557, and Janu Manjhi v. Mani-ruddin (1904) 8 C.W.N. 590. It is further contended that, if the Magistrate acted without jurisdiction, the petitioner is entitled, as a matter of right, to ask the interference of this Court, and reference is made to the cases of Sheikh Munglo v. Durga Narain Nag (1876) 25 W.R. Cr. 74, 76, Chunder Madhub Ghose v. Juggut Chunder Sen (1879) 4 C.L.R. 483, Queen-Empress v. Gobind Chandra' Das (1893) I.L.R. 20 Calc. 520, and Kali Kissen Tagore v. Anund Chunder Roy (1896) I.L.R. 23 Calc. 557.

4. As regards the first branch of the contention of the learned Counsel for the petitioner we are of opinion that the Police Report upon which the Magistrate founds his initial order should contain a statement of the facts from which the Magistrate may be satisfied of the existence of a likelihood of a breach of the peace. It is essential, as observed in the cases of Gobind Chunder Moitra v. Abdool Sayad (1881) I.L.R. 6 Calc. 835 and Anesh Mollah v. Ejaharuddi (1901) I.L.R. 28 Calc 446, for the assumption of jurisdiction by the Magistrate, that he should be satisfied, either from a Police Report or from other information, that there is a likelihood of a breach of the peace; the mere fact 'that there is a dispute concerning land is clearly not sufficient by itself under the Code to give him jurisdiction. It is, we think, also obvious that the Code contemplates that the Magistrate should exercise his own judgment in arriving at a conclusion from the materials placed before him or from the circumstances within his knowledge. There is considerable force in the contention that, if a Magistrate acts upon a mere expression of opinion by the Police, not accompanied by any statement of facts sufficient to satisfy him and to enable him to form his own opinion, the institution of the proceedings is practically transferred from the Magistrate to the Police. But we are not prepared to go further and to hold that a Magistrate has no jurisdiction to institute proceedings unless the Police Report shows that the disputing parties are actually assembling men, as stated in the case of Puddomonee Dassee v. Juggodumba Dassee (1875) 25 W.R. Cr. 2, or doing other specific overt acts, as stated in the case of Rajah Ram Bahadoor v. Ranee Tikssuree Koer (1874) 22 W.R. Cr. 79. If the learned Judges, who decided these two cases, intended to lay down any inflexible rule of law, we regret we are unable to adopt it; as such a - limitation is not justified by the language of the Code, and if accepted, would in many instances undoubtedly defeat the very object, namely, the prevention of breaches of the peace, which the Legislature had in view. Nor are we prepared to assent to the view indicated in the case of Dhanput Singh v. Chalterput Singh (1893) I.L.R. 20 Calc. 513 that this Court should ordinarily examine whether the grounds, upon which the Magistrate was satisfied of the existence of the likelihood of a breach of the peace, afford a reasonable foundation for his conclusions. It appears to us impossible to lay down any hard-and-fast rule so as to specify the sufficiency of the materials upon which a Magistrate ought to be satisfied before he assumes jurisdiction in any particular case. We can only hold that a Magistrate ought not to take action upon a mere expression of opinion by the Police, but should have a statement of facts before him, so that he may form his own opinion and be satisfied as to the necessity or otherwise for the initiation of proceedings under Section 145. Judged by this test, there was, in our opinion, sufficient material in this case before the Magistrate to justify his action, though it may be conceded that the Police Report might have been more full and specific.

5. The second branch of the contention advanced by the learned Counsel for the petitioner is based on the assumption that in order to justify the initiation of proceedings by the Magistrate it is essential that the dispute must be of a character which renders a breach of the peace imminent. It may be conceded that there are cases to be found in the Reports which appear to lend some support to this argument, notably the cases of Gobind Chunder Moitra v. Abdool Sayad (1881) I.L.R. 6 Cale. 885, Kali Kissen Tagore v. Anund Chunder Roy (1896) I.L.R. 23 Cale. 557 and Janu Manjhi v. Maniruddin (1904) 8 C.W.N. 590. But if the learned Judges, who decided these cases, intended by the use of the expression 'a breach of the peace must be imminent' a state of things different from what is indicated by the expression 'there is a likelihood of a breach of the peace,' we are unable to hold that the imminence of a breach of the peace is essential for the exercise of jurisdiction by the Magistrate. If 'imminence' of an event indicates a greater degree of chance of the event happening than is denoted by the 'likelihood' of the event, it is obvious that the interpretation sought to be put upon the section is not justified by its language. It is always dangerous to paraphrase the language of a Code, and especially so when, as in the present instance, the terms are clear and unambiguous. It is perfectly true that, as pointed cut in the cases of In the matter of Kunund Narain Bhoop (1878) I.L.R. 4 Calc. 650 and Anesh Mollah v. Ejaharuddi (1901) I.L.R. 28 Calc. 446, the jurisdiction conferred upon a Magistrate to take proceedings under Section 145 is of an exceptional character, and it is also obvious that such jurisdiction may be exercised only under the circumstances denned in that section, namely, that a dispute likely to induce a breach of the peace exists, for it is this likelihood which renders necessary any action on the part of the Magistrate. But we are unable to see any justification for incorporating into the section a further limitation, which is not justified by its language. The view we take is supported by the case of Uma Churn Santra v. Beni Madhub Roy (1880) 7 C.L.R. 352 where Sir Richard Grarth C.J. pointed out that there must be a present danger of a breach of the peace (not, be it noticed, a danger of an 'immediate or imminent breach of the peace), and also by the case of Damodar Biddyadhur Mohapatro v. Syamanund Dey (1881) I.L.R. 7 Calc. 335 where Mitter J. pointed out that, although it is not enough to show that it is probable that a breach of the peace may occur, it is sufficient for the Magistrate to take action if there is a reasonable apprehension that a disturbance of the peace is likely to occur. In our opinion, the Magistrate must determine in each case whether there is a likelihood of a breach of the peace, and that we ought not to adopt a construction the effect of which will be to substitute for the word 'likelihood' the term 'probability' or 'imminence' or any similar expression. In the case before us the Magistrate was satisfied at the time he recorded the initial order that there was a likelihood of a breach of the peace, and there can be no reasonable room for doubt upon the facts that his conclusion was right.

6. Assuming, however, that the contention advanced by the learned Counsel for the petitioner is well founded in either one or both of its branches, the question arises, whether the petitioner is entitled to claim the interference of this Court as a matter of right. It may be conceded that the cases of Sheik Munglo v. Durga Narain Nag (1876) 25 W.R. Cr. 74, Chunder Madliub Ghose v. Juggat Chunder Sen (1879) 4 C.L.R. 483, Queen-Empress v. Gobind Chandra Das (1893) I.L.R. 20 Calc. 520 and Kali Kissen Tagore v. Anund Chunder Roy (1896) I.L.R. 23 Calc. 557 do tend to show that so long as the Criminal Procedure Codes of 1872 and 1882; were in force, this Court in the exercise of its Revisional Jurisdiction did interfere with orders made under Section 145 (or the corresponding section of the repealed Codes) when such orders had been made without jurisdiction and under circumstances similar to those alleged to exist in the present case: though the case of Gour Mohun Majee v. Doollubh Majee (1874) 22 W.R. Cr. 81, with which some dissatisfaction has been expressed in subsequent cases, shows that even under the repealed Codes there was a diversity of judicial opinion as to the propriety of the reversal by this Court of every order made without jurisdiction. The learned Counsel for the petitioner laid considerable stress upon a passage in the judgment of this Court in the case of Kali Kissen Tagore v. Anund Chunder Roy (1896) I.L.R. 23 Calc. 557, to which one member of this Bench was a party, in which it was held that, if at the time when the Magistrate makes the initial order, there are not materials before him which would justify his action, he acts without jurisdiction, and the defect is not remedied even if it appears from the evidence, taken in the course of the trial, that there was, at the date of the initiation of the proceedings, a dispute likely to cause a breach of the peace. After a careful examination of this case we find ourselves unable to adopt the view indicated therein as well founded on principle. But it is not necessary to refer this matter to a Full Bench by reason of two circumstances. In the first place, the decisions referred to were passed under the Codes of 1872 and 1882 and interpret the scope and the mode of exercise of the Revisional Jurisdiction of this Court, whereas we are invited in the present instance to interfere in the exercise of the Extraordinary Jurisdiction which we possess under Section 15 of the Charter Act. In the second place, the decision of the Full Bench in the case of Sukh Lal Sheikh v. Tara Chand Ta (1905) 9 C.W.N. 1046 has definitely settled that this Court will not interfere under Section 15 of the Charter Act unless it is satisfied that the petitioner, who seeks the interference of this Court, has been prejudiced by the proceedings in the Court below. This is an unquestionably sound principle, and our judicial discretion, instead of being crystallized, ought to be fairly exercised according to the exigencies of each individual case. Judged by this standard let us consider for a moment how the petitioner stands. The initial order recorded by the Magistrate stated specifically that he was satisfied of the existence of a dispute, which was likely to lead to a breach of the peace. A copy of this order was duly served on all the parties interested. Each of the claimants filed a written statement setting forth various matters relating to his alleged possession of the subject-matter of the dispute, but none of them asserted that there was no apprehension of a breach of the peace. The present petitioner even went further, and described in his written statement circumstances which showed unmistakably that a breach of the peace was likely. The Magistrate then took evidence and found that the dispute between the parties did at the date of the 'initiation of the proceedings render a breach of the peace likely. The learned Counsel for the petitioner frankly admits that this conclusion is amply supported by the evidence and cannot be successfully challenged. But ho contends that, as the Police Report upon which the Magistrate proceeded to draw up the initial order was defective and did not set out sufficient facts to justify an apprehension of the breach of the peace, the whole proceedings were without jurisdiction, and it is the duty of this Court to set aside the final order. We have no hesitation in holding that we ought not to accede to this contention. Hero the petitioner, in the language of Coleridge J. in Marsden v. Wardle (1854) 3 E. & B.695, 701, chose to wait and take the chance of judgment in his favour, and he cannot now be heard to complain of excess of jurisdiction, and to claim as a matter of right that the proceedings should be quashed. The rule laid down by the Court of Appeal in Farquharson v. Morgan (1894) 1 Q.B. 552, namely, that where total absence of jurisdiction appears, on the face of the proceedings in an inferior Court, the superior Court is bound to interfere, does not, even in its limited form, apply to the circumstances of this case and, so far, as we are aware, has never been adopted by the Courts of this country. In our opinion it would have been lamentable if we had found ourselves obliged by any rule of law to interfere in a case of this description with an order which is undoubtedly right, which has not prejudiced any of the parties, and the reversal of which might be followed by a breach of the peace as the necessary and the immediate result. The second ground upon which the propriety of the order is questioned cannot be supported and must be over-ruled.

7. The third and last ground upon which the validity of the order of the Magistrate is challenged is that he has failed to give effect to a previous order relating to the property now in dispute made under Section 530 of Act X of 1872, and to a decree of a Civil Court, which decided the question of title in favour of the present petitioner.

8. It is argued by the learned Counsel, upon the authority of the cases of Gobind Chunder Moitra v. Abdool Sayad (1881) I.L.R. 6 Calc 835 and Sims v. Johurry Lal (1901) 5 C.W.N. 563, that the Magistrate was bound to treat the order and decree, just referred to, as conclusive upon the question of possession, and should, on that basis, have maintained the petitioner in possession. In our opinion these cases are clearly distingushable and we may add that, if they purport to lay down, as an invariable that a Criminal Court in determining the question of possession under Section 149 is concluded by every decree of a Civil Court and every previous order of a Criminal Court relating to the same property, no matter when and under what circumstances such orders were made, we are unable to accept this as a correct statement of the law. The Court which initiates proceedings under Section 145 must determine the question of actual possession with reference to a particular point of time, namely, the date of the initial order, in the case of forcible dispossession, a date within two months next before such date. In the investigation of this question, any previous order of a Civil or Criminal Court relating to the property in dispute may throw light upon the matter, but the evidentiarv value to be attached to any such piece of evidence must obviously depend upon the particular circumstances of the individual case. Thus in Gobind Chunder Moitra v. Abdool Sayad (1881) I.L.R. 6 Calc. 835 during the pendency of proceedings under the Land Registration Act in which the question of possession of the property in dispute had to be determined, proceedings were instituted under Section 530 of the Criminal Procedure Code of 1872; the same officer in his capacity as Deputy Collector and as Deputy Magistrate had to take cognizance of the two proceedings, and he came to contradictory findings upon the question of possession. It was held by this Court that the Deputy Magistrate could not practically set aside the order he had made in his capacity as Deputy Collector, but the learned Judges went on to make some general observations which taken apart from the facts of the case might be difficult to support. Again in Doulat Koer v. Rameswari Koeri (1899) I.L.R. 26 Calc 625 it was laid down that the duty of a Magistrate, when the right to possession has been declared within a time not remote from his taking proceedings under Section 145, is to maintain any order which has been passed by a competent Court. This statement, however appropriate it may be in connection with the facts of the particular case before the Court, is obviously not justified by the provisions of the statute, and, regarded as a general proposition, is not sufficiently precise to be applicable to all cases. It was, however, further developed in the case of Sims v. Johurry Lal (1901) 5 C.W.N. 563, when it was broadly stated that the duty of a Criminal Court in a case under Section 145 where there is a decree of a Criminal Court for possession in recpect of the disputed land, is to find which party held such Civil Court decree and then to mintain that party in possession. A view more consistent with provision v. Kali Charan Santal (1904) 8 C.W.N. 719, where a Civil Court decree for possession was treated as affording only a presumptive proof of possion, to be teken along with such other evidence of possession as might be forthcoming. A similar view appears have been teken in the case of Gulraj Marwari v. Sheik Bhatoo (1905) I.L.R. 32 Calc. 796 where the petitioner having been put in possession of the disputed land by the Civil Court in execution of a decree esteblishing his right to the same, only eight days before the institution of proceeding under Section 145, the learned Judges held that the duty of the Magistrate was to find possession in accordance with the Civil Court decree, and not to attach the land under Section 146. Upon a review of these authorities it appears to be clear to us that there is no inflexible rule of law that a Magistrate, in deciding the question of possession under Section 145 of the Criminal Procedure Code, is concluded by every previous order of a Civil or Criminal Court relating to the subject of dispute, and that the weight to be attached to any such previous order must depend upon the facts and circumstances of the particular case. Now let us examine for a moment the strength of the case for the petitioner as tested by an application of this principle. The order under Section 530 of Act X of 1872, upon which reliance is placed was made so far back as 1883, that is, 21 years before the commencement of the present proceedings; the decree of the Civil Court followed four years later, in 1887. Since then, the property affected by the order and by the decree has been completely washed away, and, it is alleged, has recently re-formed on the old site. Under these circumstances, it is impossible to urge with any show of reason that the documents relied upon have any substantial bearing upon the decision of the question of the actual possession of the re-formed chur. It is conceded that the learned Magistrate has considered the whole of the evidence upon the matter, and his conclusions, we think, cannot be successfully attacked. In our opinion there is no substance in the third ground taken before us, and it must be over-ruled.

9. The Rule will, therefore, stand discharged.


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