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Fakir Mullilck and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.671
AppellantFakir Mullilck and anr.
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), sections 133, 139(1), 111 - inquiry in proceedings under section 133--bona fide claim of right set up--procedure. - .....rights bad been interfered with and he came to the conclusion that the channel was, in fact, a public channel. mr. mukherjee, who appears for the petitioners in this case, says that, having regard to the rulings of this court, the magistrate ought to have first enquired whether his clients had a bona fide claim of right to the channel; and, if he found that they had, then he should have referred the parties to the civil court. no doubt, in certain decisions of this court the rule is stated1 to that effect: but those words do not appear in the section and i think that every case must largely turn on the particular circumstances affecting it. no doubt, in normal eases that course is a wise and proper course to adopt. it is not convenient that a court of this nature should adjudicate.....
Judgment:

Fletcher, J.

1. This is a Rule calling upon the District Magistrate of Howrah to show cause why the orders under Sections 139(1) and 140(l), Code of Criminal Procedure, complained of in the petition should not be set 'aside or why such other order should not be passed in the matter as to this Court might seem fit and proper on grounds Nos. 1 and 2 mentioned in the petition. The proceedings with which we are concerned in this case are proceedings taken under Section 133, Code of Criminal Procedure. The learned Sub Divisional Magistrate of Uluberia proceeded to enquire on a complaint that public rights bad been interfered with and he came to the conclusion that the channel was, in fact, a public channel. Mr. Mukherjee, who appears for the petitioners in this case, says that, having regard to the rulings of this Court, the Magistrate ought to have first enquired whether his clients had a bona fide claim of right to the channel; and, if he found that they had, then he should have referred the parties to the Civil Court. No doubt, in certain decisions of this Court the rule is stated1 to that effect: but those words do not appear in the section and I think that every case must largely turn on the particular circumstances affecting it. No doubt, in normal eases that course is a wise and proper course to adopt. It is not convenient that a Court of this nature should adjudicate and settle matters which can properly be referred to the Civil Court. But there are other oases--eases of urgency--where that rule, notwithstanding the fact that it may place one of the parties in a less favourable position, cannot be followed and it seems to me that the present case is one of those cases where the Magistrate has got to choose whether he would proceed with the case and deter-mine it or whether serious injury would be caused to the other party. I think in this case we ought not to interfere with the orders complained of, the Magistrate having determined that the public have a right to the water of the channel, as it would, if the petitioners' argument he assented to, seriously affect' a very large portion of land of the persons who appeared before the learned Magistrate.

2. The other point that has been made is that the learned Sub-Divisional Magistrate was guilty of a serious contempt of Court in ordering the bund to be cut after an order had been made by this Court on the 16th August last staying all further proceedings. It is said that the order was communicated to the learned Magistrate by a Mukhtar. Whether the learned Magistrate believed the statements made by the Mukhtar as credible or not we do not know. There is no answer to the affidavit filed by the petitioners and I do not know whether the Magistrate ever knows of it or not. There seems to be no reason, if the petitioners intended to communicate an order of an urgent nature to the Magistrate, why an order in some form or other should not have been taken from this Court to communicate to the Magistrate. Whether any actual rule exists or not as to that I do not know; but I take it that, where the order is of a very urgent nature, there cannot be any difficulty in procuring an order from the Court and sending it down by the party who obtains the order to communicate it to the Magistrate. I do* not think we can assume in this case that the learned Magistrate was deliberately acting in defiance of the order of this Court. I think this is a case where we ought not to interfere, having regard to the nature pf the public right which the learned Magistrate has found to exist. That being so, the Rule fails and must be discharged.

Teunon, J.

3. I agree.


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