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Kamini Mohan Das Gupta Vs. Harendra Kumar Sarkar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal876,13Ind.Cas.782
AppellantKamini Mohan Das Gupta
RespondentHarendra Kumar Sarkar
Excerpt:
prohibitory order - excavation of a tank--injury to adjoining house--likelihood of a breach of the peace--order passed on personal apprehension of the magistrate without evidence taken or urgency recorded--criminal procedure code (act v of 1898) section 144. - .....an order of the sub-divisional magistrate of magura, purporting to be under section 144 of the criminal procedure code, on two grounds, namely, first, that the terms of section 144 of the criminal procedure code were not duly complied with, and, secondly, that there is no probability of a breach of the peace.2. the facts of the case are sufficiently trivial. they appear to be these. the parties are pleaders at magura. the petitioner began to excavate a tank near his house, and the police apprehending that, if he continued to do so, the house of the opposite party would sooner or later go down into the bed of the tank, approached the magistrate to take action under section 133. the magistrate appears to have had an interview with the pleaders, and to have advised them to compromise......
Judgment:

Caspersz and Sharfuddin, JJ.

1. We are asked in this Rule to set aside an order of the Sub-Divisional Magistrate of Magura, purporting to be under Section 144 of the Criminal Procedure Code, on two grounds, namely, first, that the terms of Section 144 of the Criminal Procedure Code were not duly complied with, and, secondly, that there is no probability of a breach of the peace.

2. The facts of the case are sufficiently trivial. They appear to be these. The parties are pleaders at Magura. The petitioner began to excavate a tank near his house, and the police apprehending that, if he continued to do so, the house of the opposite party would sooner or later go down into the bed of the tank, approached the Magistrate to take action under Section 133. The Magistrate appears to have had an interview with the pleaders, and to have advised them to compromise. Then, on the 19th April 1911, and without further enquiry and .without recording any urgency in the matter, the Magistrate made his Rule absolute not on the ground reported by the police but, as appears from his present explanation, from his personal apprehension that the parties would break the public peace.

3. It appears to us that the order is entirely misconceived, and it cannot possibly be sustained. No cause is shown, but we have examined the papers and read the explanation of the Sub-Divisional Magistrate. It is obvious from a bare recital of the facts that Section 144 of the Criminal Procedure Code was not applicable, and that the order was not passed on any real apprehension properly arrived at. Orders under Section 144 are not intended for the purpose to which the Magistrate has applied his powers under that section. The section is ordinarily to be used in cases of urgency, and should not be allowed to take the place of any other provision of the law which might more appropriately apply. If the opposite party had been so advised, he might have Obtained against the petitioner an injunction to prevent him from continuing the excavation of the tank. In this view, we make the Rule absolute, and set aside the order complained of.


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