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Siv Narayan Mukherjee and ors. Vs. Satish Chandra Ghosal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.161
AppellantSiv Narayan Mukherjee and ors.
RespondentSatish Chandra Ghosal and ors.
Cases ReferredQueen Empress v. Gobind Chandra Das
Excerpt:
criminal procedure code (act v of 1898), section 145, proceedings under - jurisdiction, basis of--breach of peace not likely--proceeding not specifying subject-matter of dispute, defective. - .....be brought by any of the parties concerned.'2. upon that observation alone we ought to make the rule absolute.3. it has also been pointed out to us that the proceedings as drawn up do not clearly specify the subject matter of dispute. it undoubtedly refers to 300 bighas of land of which the boundaries are given bat the magistrate proceeds to say that 'the 300 bighas are in mouzah jatrasidhi or nutun chur which is said to be a part and parcel of touji no. 47, pargannah arsha.' but the dispute was whether that plot of land belonged to mouzah jatrasidhi or refaitpore as a patti of raghunathpur. this also is a serious defeat.4. there is this further point that after taking evidence the magistrate hell that the second party had been 'forcibly dispossessed by the first party within two.....
Judgment:

1. The basis of jurisdiction in cases of this character is the likelihood of a breach of the peace. There was a petition before the Magistrate and there was a Polios report. He heard both the parties and he said this; 'It appears to me that there is hardly any likelihood of any immediate breach of the peace. A hut was being constructed sometime back, as the Police report says, and the opposite party was getting together peoples to demolish the hat. This happened over a month back and no disturbance has occurred yet and in my opinion is hardly likely to occur.' He is not merely referring to any immediate breach of the peace; but he says that he does not think that any distrubance is likely to occur. If that was so, how could he proceed under Section 145 of the Criminal Procedure Code? It was pointed out in the case of the Queen Empress v. Gobind Chandra Das 20 C 520 at p. 525 : 10 Ind. Dec. (N.S.) 352 that; a Magistrate is bound to satisfy himself, on grounds which are reasonable, that a breach of the peace is imminent in regard to a property of the description specified in Section 145 that a dispute likely to cause a breach of the peace exists concerning them, and that the grounds stated by him must be such as would satisfy a Court of revision, before which such a case may be brought by any of the parties concerned.'

2. Upon that observation alone we ought to make the Rule absolute.

3. It has also been pointed out to us that the proceedings as drawn up do not clearly specify the subject matter of dispute. It undoubtedly refers to 300 bighas of land of which the boundaries are given Bat the Magistrate proceeds to say that 'the 300 bighas are in Mouzah Jatrasidhi or Nutun Chur which is said to be a part and parcel of Touji No. 47, Pargannah Arsha.' But the dispute was whether that plot of land belonged to Mouzah Jatrasidhi or Refaitpore as a Patti of Raghunathpur. This also is a serious defeat.

4. There is this further point that after taking evidence the Magistrate hell that the second party had been 'forcibly dispossessed by the first party within two months before the institution of the proceedings.' He overlooks the provisions of Section 145. It states clearly that what has to be found is 'forcible and wrongful dispossession,' This has been urged as an additional ground upon which the Rule ought to be made absolute.

5. We make this Rule absolute, although the last ground above mentioned may, not be treated as a question of jurisdiction authorising this Court to interfere, in this matter.


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