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Gostha Behari Mandal Vs. Abed Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Ref. No. 28 of 1950
Judge
Reported inAIR1950Cal425
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 147 and 147(2)
AppellantGostha Behari Mandal
RespondentAbed Ali and ors.
Appellant AdvocateManmatha N. Das and ; Sukumar Mitter, Advs.
Respondent AdvocateManishi Kr. Das, Adv.
Excerpt:
- .....the right had not been exercised within the statutory period laid down there, the order was bad. the answer is self evident and it is a little surprising that the learned judge should have fallen into an error and made the reference. the logical result of his view is that the burial ground could only be kept going provided somebody was made to die at intervals of some three months. clearly the answer is that this is not a right exercisable at all times of the year bat are exercisable on certain occasions. the evidence was that on the last occasion somebody of the community died whose death was due to such a cause that custom required his burial, he was buried in this place and i presume there was ample other evidence to show that the plot in question was otherwise used as a burial ground.....
Judgment:
ORDER

Roxburgh, J.

1. This reference must be rejected. It is against an order passed under Section 147, Criminal P. C., the dispute being about a bank of a tank used as a burial ground, in certain cases, by Hindus of neighbouring villages. A lease was taken by one of the opposite parties before the trial Magistrate of a tank and its bank, the latter being claimed by the villagers to be their burial ground. Proceedings were started under Section 145, Criminal P. C., as there was a danger of a communal riot. There were also proceedings under Section 147, Criminal P. C.

2. The sole point of the reference that the last time anybody was proved to have been buried on the bank in question was more than three months before the date of the Magistrate's enquiry and therefore under Section 147(2), as the right had not been exercised within the statutory period laid down there, the order was bad. The answer is self evident and it is a little surprising that the learned Judge should have fallen into an error and made the reference. The logical result of his view is that the burial ground could only be kept going provided somebody was made to die at intervals of some three months. Clearly the answer is that this is not a right exercisable at all times of the year bat are exercisable on certain occasions. The evidence was that on the last occasion somebody of the community died whose death was due to such a cause that custom required his burial, he was buried in this place and I presume there was ample other evidence to show that the plot in question was otherwise used as a burial ground on such occasions. The learned Judge in fact omitted to read Sub-section (2) carefully and notice how its terms applied to the present case.

3. The reference is accordingly rejected.


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