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Jatirdra Nath Sikdar and ors. Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1967CriLJ1716
AppellantJatirdra Nath Sikdar and ors.
RespondentThe State and ors.
Cases ReferredKhudiram Mandal v. Jitendra Nath Mandal
Excerpt:
- .....the subdivisional magistrate, ranaghat, for an order under section 144 of the-criminal p. c. the learned magistrate sent the petition to the police for enquiry and report, and on receipt of the report, he drew up proceedings under section 144 on december 1, 1966 against the present petitioners restraining them from entering on the land and directing them to show cause on 4th of january, 1967.2. on december 2, 1968, the first party filed a petition which was ordered to be put up on december 13, following for hearing. on the date, the learned magistrate after hearing the parties converted the proceeding under section 144 of the code into one under section 145. by the same order, he attached the lands under sub-section (4) of the section and appointed the local anchal pradban as the.....
Judgment:

T.P. Mokherji, J.

1. The second party to a proceeding under Section 145 of the Criminal P. C., obtained this rule against the order passed by the Magistrate in the proceeding and it is the propriety of the order that has been challenged before me. On November 26, 1966, the opposite parties to the present rule applied to the Subdivisional Magistrate, Ranaghat, for an order under Section 144 of the-Criminal P. C. The learned Magistrate sent the petition to the police for enquiry and report, and on receipt of the report, he drew up proceedings under Section 144 on December 1, 1966 against the present petitioners restraining them from entering on the land and directing them to show cause on 4th of January, 1967.

2. On December 2, 1968, the first party filed a petition which was ordered to be put up on December 13, following for hearing. On the date, the learned Magistrate after hearing the parties converted the proceeding under Section 144 of the Code into one under Section 145. By the same order, he attached the lands under Sub-section (4) of the section and appointed the local Anchal Pradban as the Receiver. The parties were directed to file their written statements and affidavits by a particular date.

3. Mr. Das Gupta appearing in support of the rule contends that the order of the learned Magistrate drawing up proceedings under Section 145 of the Code is not a proper order at all inasmuch as it lacks the foundation for an order under the section which is the satisfaction of the Magistrate concerned that there is sufficient ground for proceeding under the section. Exception was also taken to the failure of the learned Magistrate to mention the reasons for his satisfaction in the matter. It was urged that the order would show that the proceeding was directed to be drawn upon the ipse dixit of the learned Magistrate. If that be the position in respect of the order directing a proceeding under Section 144 of the Code to be drawn up, the same objections will apply to the order whereby the proceeding under Section 144 was converted into one under Section 145 of the Code.

4. Mr. Mookerjee appearing for the opposite parties contended that the failure of the Magistrate to mention the fact of his satisfaction regarding the apprehension of breach of the peace is merely an irregularity which would be curable under Section 537 of the Code. In support of this contention of his, be refers to the case of Khudiram Mandal v. Jitendra Nath Mandal : AIR1952Cal713 . But that case does not appear to help Mr. Mookerjee in his contention. So far as that case is concerned, the learned Magistrate stated in his order drawing up the proceeding under Section 145 of the Code that he wag satisfied as to the likelihood of a breach of the peace. The omission was in his failure to-state the grounds of his being so satisfied and this omission was held to be an irregularity which would be curable unless prejudice was found to have been caused.

5. So far as the present case is concerned, there is no question that the police report was before the Magistrate. But the Magistrate nowhere stated, either in his order dated December 1, 1966 whereby he directed a proceeding under Section 144 of the Code to be drawn up or in his order dated December 13, 1966 whereby he directed that proceeding to be converted into one under Section 145, that in his opinion there was a likelihood of breach of the peace or that he was satisfied from the materials before him that there was apprehension of the breach of the peace and that to prevent that breach of the peace it was necessary that a proceeding under 8- 144 or 145 of the Code be drawn up. The foundation of the Magistrate's order for a proceeding under Section 144 or 145 of the Code is his satisfaction on materials before him that there is an apprehension of breach of the public peace. Unless he is satisfied in that regard, he would have no jurisdiction to draw a proceeding under either of those two sections. In order to give the Magistrate the jurisdiction to draw up the proceeding concerned, there will have to be his satisfaction in the above matter, and if the learned Magistrate does not mention about this satisfaction, his jurisdiction is lost. As there is nothing on record in this case to indicate the learned Magistrate's satisfaction about apprehension of breach of the peace, the basis for the proceeding that was drawn up is lost; the proceeding that was drawn up must accordingly be quashed.

6. I find, however, from the record that the police reported a serious apprehension of breach of the peace unless suitable action was taken by the Magistrate in the matter. Mr. Mookerjee Submits that, unless some arrangement be made for the custody of the paddy on the disputed land that has already been harvested by the Receiver, there is sure to be a breach of the peace if this proceeding be quashed immediately and before the learned Magistrate can take appropriate action for preservation of the peace. Mr. Das Gupta appearing for the petitioners undertakes that his clients will take no further action in the matter of getting possession of the harvested paddy pending arrangement for custody of the same that may be made till the matter in dispute is settled between the parties. In view of the above submissions of the learned Advocate, I propose to pass the following order:

7. The rule is made absolute. The proceeding drawn up by the learned Magistrate under Section 145 of the Criminal P. C., is quashed. Both the parties however are restrained by this Court from entering on the land and this order will remain effective for a period of one month. Shri Kanailal Mukherjee, the local Anchal Pradhan, Will continue to be in charge of the disputed property as Receiver until further orders from the Subdivisional Magistrate of Rauaghat.

8. Let the records be sent down immediately, The learned Magistrate will be at liberty to consider afresh the question as to whether he would draw up a further proceeding under Section 144 or 146 of the Criminal P. C., in the matter. If he decides to draw up a proceeding and to attach the disputed property, he will appoint the Officer-in-Charge of the local police station as the Receiver. The existing Receiver will make arrangement for thrashing and storage of the paddy and straw in question. The parties to the proceeding will supply the necessary labour for thrashing the paddy. The cost of storage will be borne equally by the parties and will be realisable from the defaulting party, if there is any default by either party in the matter. If the parties pay their share of the cost of thrashing and storage, such payment will not be subjected to the claim of the other party if the proceeding ultimately ends in his favour. After the termination of the proceeding if any, that may be initiated afresh by the learned Magistrate over this dispute, he will make appropriate orders regarding the disposal of the paddy and straw.


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