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Upendra Nath Bhattacharjee Vs. Prasanna Kumar Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal884,48Ind.Cas.497
AppellantUpendra Nath Bhattacharjee
RespondentPrasanna Kumar Ghosh and ors.
Cases ReferredSheikh Mansar Ali v. Matiullah
Excerpt:
criminal procedure code (act v of 1898), sections 145, 146 - possession of fishery extending over several miles, dispute as to--magistrate unable to satisfy himself as to possession of whole fishery--procedure--local investigation, whether necessary in every case. - .....should have proceeded under the provisions of section 148, criminal procedure code, to have a local investigation, and in support of that contention reference has been made to the case reported as sheikh mansar ali v. matiullah 12 c.w.n. 896 : 8 cr.l.j. 28 but we do not read that decision as laying down a hard and fast rule of law that in every case a local investigation must be held, whether the parties desire that such local inquiry should be held or not. in the present case notwithstanding the fact that the hearing extended over 14 days neither party, it appears, prayed to the magistrate that a local enquiry should be had. we cannot, therefore, say that in this case the magistrate has erroneously exercised his discretion in not holding such a local investigation. but when the.....
Judgment:

1. This Rule arises out of proceedings taken under Chapter XII of the Code of Criminal Procedure. In the order initiating the proceeding the subject-matter of the dispute is described as a fishery in the river Amra extending from a point named Bura Peer Dara on the north and a village Anantapur on the south. After a hearing extending over some 14 days ' the conclusion arrived at by the Magistrate is expressed in these terms: ' It is very difficult to come to a decision about the possession of the whole jalkar in dispute from the evidence adduced.' This finding is attacked in the first place on the ground that 'difficult' is not synonymous with ' impossibility ' and that the finding therefore does not satisfy the provisions of the second branch of Section 145(1), Criminal Procedure Code. No doubt it is the case that difficulty is not necessarily synonymous with impossibility, but we think that in the present case we may read the Magistrate's judgment as meaning that on the evidence adduced he was unable to satisfy himself as to which of the containing patties was in possession of the property in question. Bat a further difficulty arises, inasmuch as he says that he is unable to come to a decision about the possession of the whole of the jalkar' which extends over a stretch of river some six miles in length. His difficulty in this connection appears to have arisen in part from the fact that both parties sought to extend their boundaries, The first party wished to extend their possession to some point on the south spoken of as Kabra Daha and two points on the north named Malpuria and Gena Dahas. The second party similarly desired to extend their possession from Anantapur on the south to a point called Itagahati which appears to be towards the north of Bura Peer Dara. But if on the evidence the Magistrate was unable to satisfy himself as to the possession of the whole of the six miles in question, that did not relieve him from the duty of proceeding further and ascertaining, in so far as he could, the possession of some portion or portions thereof. As to the portion of which he was able to say 'so and so is in possession', he should have proceeded under Section 145, Criminal Procedure Code, and only as to the remainder should he have proceeded under Section 146, Criminal Procedure Code.

2. We may note further that it has been suggested that the Magistrate should have proceeded under the provisions of Section 148, Criminal Procedure Code, to have a local investigation, and in support of that contention reference has been made to the case reported as Sheikh Mansar Ali v. Matiullah 12 C.W.N. 896 : 8 Cr.L.J. 28 But we do not read that decision as laying down a hard and fast rule of law that in every case a local investigation must be held, whether the parties desire that such local inquiry should be held or not. In the present case notwithstanding the fact that the hearing extended over 14 days neither party, it appears, prayed to the Magistrate that a local enquiry should be had. We cannot, therefore, say that in this case the Magistrate has erroneously exercised his discretion in not holding such a local investigation. But when the case goes back and further proceedings, if any, are taken, and if a local investigation will for instance assist in the determination of the points Bura Peer Dara, Mulpuria, Gena Daha, Kabra Daha and Itagahati, obviously it will be desirable that such investigation should be had.

3. For the reasons we have given we make this Bale absolute and set aside the order complained of. If a dispute likely to occasion a breach of the peace still exists it will be open to the District Magistrate to take such further proceedings as he may consider necessary.


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