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NasiruddIn Sircar Vs. GofuruddIn Mohamed and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.481
AppellantNasiruddIn Sircar
RespondentGofuruddIn Mohamed and ors.
Cases ReferredEmperor v. Abbas
Excerpt:
criminal procedure code (act v of 1898), sections 107, 145 - concurrent proceedings--order under section 145 after passing order under section 107--jurisdiction. - 1. in this case a petition was presented for proceedings under section 145, criminal procedure code, by the first party on 8th september 1915. on 15th september 1915, the same magistrate passed orders against both the parties in this case under section 107, criminal procedure code, binding them down to keep the peace for one year. it should be stated that the parties are relations and co-sharers and are now apparently at logger heads. in spite of the order under section 107, criminal procedure code, the section 145 proceedings continued. both the parties filed their written statements. one we have before us of 29th september 1915. that was the petition of the 2nd party, one of whom is the petitioner before us. in that the second party did not plead any want of jurisdiction in the.....
Judgment:

1. In this case a petition was presented for proceedings under Section 145, Criminal Procedure Code, by the first party on 8th September 1915. On 15th September 1915, the same Magistrate passed orders against both the parties in this case under Section 107, Criminal Procedure Code, binding them down to keep the peace for one year. It should be stated that the parties are relations and co-sharers and are now apparently at logger heads. In spite of the order under Section 107, Criminal Procedure Code, the Section 145 proceedings continued. Both the parties filed their written statements. One we have before us of 29th September 1915. That was the petition of the 2nd party, one of whom is the petitioner before us. In that the second party did not plead any want of jurisdiction in the Magistrate by reason of the order under Section 107. On the contrary they pleaded that they had done nothing which was likely to lead to a breach of the peace. The proceedings continued before the Magistrate, the first hearing taking place on 28th October and the final order being passed on 11th December. The Magistrate ultimately found that neither party was in actual possession of the land in dispute and so he passed an order under Section 146, Criminal Procedure Code. It is argued for the petitioner before us---who is one of the second party---that the Magistrate having passed an order under Section 107, Criminal Procedure Code, had no jurisdiction to continue the proceedings under Section 145. It appears clear from the decision of a Full Bench of this Court in the case of Emperor v. Abbas 12 Ind. Cas. 833 : 39 C. 150 : 14 C. L.J. 429 : 12 Cr. L.J. 569 : 16 C.W.N. 83. that there would be no want of jurisdiction in such a case. The Court there said: Whether after proceeding under Section 107, Criminal Procedure Code, it will be proper for a Magistrate to act under Section 145, Criminal Procedure Code, must depend on the circumstances of each case as it arises. It may be that after an order under Section 107, Criminal Procedure Code, no likelihood of a breach of the peace would continue.' That contemplates that proceedings under both Sections may go on concurrently. It may be that the order of the Magistrate was defective in this particular that he did not, so far as his judgment shows, consider what the effect would be upon the parties of the order under Section 107. This, however, would not affect his jurisdiction, though it might affect the propriety of the order which he passed. In this case, however, it is clear that both parties, with full knowledge of that order, went on with the Section 145 proceedings, each hoping, no doubt, to get an order of possession in its favour. In this neither party was successful. We do not think that, under these circumstances, it is a case in which this Court ought to interfere. The sooner the parties have recourse to the Civil Court to settle their differences with regard to this property the better. The Rule is discharged.


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