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W. Stewart and ors. Vs. Hubert Hughes - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1929Cal341,118Ind.Cas.892
AppellantW. Stewart and ors.
RespondentHubert Hughes
Cases ReferredMaharaj Bahadur Singh v. Raja Ranjit Singh
Excerpt:
- .....is that the proceedings were without jurisdiction. it is well settled that it is the existence of a dispute likely to cause a breach of the peace which confers jurisdiction on the magistrate to initiate the proceedings. the word used in the section is 'exists' and there can be no doubt that the dispute existed. it is clear, however, from the police report that there was at the time no likelihood of any breach of the peace, and indeed that no such likelihood had existed for about a month previous to the submission of the police report. all that was disclosed in that report was that there was a likelihood at some future date of a breach of the peace. that according to the current of decisions in this court was not sufficiens to give jurisdiction. for these reasons i agree with my learned.....
Judgment:

Suhrawardy, J.

1. This rule has been issued upon several grounds one of which in my opinion is enough to dispose of this matter. That is:

That the police report not having disclosed any apprehension of a breach of the peace at the time the proceedings were drawn up the said proceedings were without jurisdiction.

2. It appears on a reference to the proceedings drawn up by the Magistrate that he relied upon a report of the Sub-Inspector of Police of the Murari Police Station dated 24th June 1928, for holding that a dispute likely to induce a breach of the peace existed between the parties. The police report upon which the learned Magistrate relies says:

The work on the disputed lands by the first party has been stopped on account of monsoon since about a month ago and so no breach of the peace is apprehended at present but there is an apprehension of a breach of the peace for the disputed lands after the present monsoon.

3. The question is whether this report upon which alone the learned Magistrate relies for drawing up proceedings under Section 145, Criminal P.C., discloses the existence of a dispute likely to cause a breach of the peace so as to give jurisdiction to the Magistrate to act under that section. The dispute between the parties is with regard to quarrying boulders for ballast purposes and this obviously could not be done during the monsoon when the police report was submitted.

4. It is now settled that in order to give jurisdiction to a Magistrate to exercise the quasi civil powers conferred upon him by Section 145, Criminal P.C., he must rely for the initiation of the proceedings upon such materials as would disclose the existence of a dispute likely to cause breach of the peace. Now the words used in the section are 'a dispute likely to cause a breach of the peace exists.' We have to give a reasonable and natural meaning to those words. It is to be seen whether the section requires that there should be a dispute in existence which is likely to cause a breach of the peace at any time or whether the dispute should be such that it is likely to cause a breach of the peace at the time when the proceedings are drawn up. From very early times since this provision of the law came under judicial interpretation it has been held that the dispute must be such as is likely to cause a breach of the peace at the time. In some cases it is said that this likelihood should be 'imminent' or immediate.' It has been observed in Kulada Kinkar Roy v. Danesh Mir [1906] 33 Cal. 33, that the introduction of the word imminent' into the section, giving it a stronger significance than the words used there bear, is not justifiable. That may be correct though the word 'imminent' was used in the Full Bench case of Khos Mahomed v. Nazir Mahomed [1908] 33 Cal. 352 in the judgment of Ghose, J. It has been used in various other cases but what the learned Judges always meant by it was the presence of a likelihood of the breach of the peace at the time when the proceedings were drawn up. It does not seem to be reasonable that the word 'dispute' should be read apart from the qualifying words 'likely to cause a breach of the peace.' A dispute may exist which is likely to cause a breach of the peace at any future time (may be years thence). But what the criminal law is concerned with, to make a breach of the peace a ground for its interference is such likelihood as is present at the time. We have got the high authority of Garth, C. J., in Uma Charan Santra v. Beni Madhab Roy [1880] 7 C.L.R. 352, the facts of which case are very similar to those of the present case There the Magistrate acted upon the report of a cannungee which said that the first party was in actual possession of the disputed land; that no present apprehension of a breach of the peace existed; but that in the absence of an order under Section 530 a breach of the peace was likely to occur at a time when the cultivation of the disputed lands would be proceeded with. The learned Chief Justice observed that the report upon which the learned Magistrate had relied disclosed no present danger of a breach of the peace although it suggested that probably at the time of the cultivation which would be some 3 or 4 months afterwards there might be a danger of that kind. He then said:

It is clear that if there was no likelihood of breach of the peace at the time when the order was made the probability of a breach of the peace some 3 or 4 months later did not justify the Deputy Magistrate in making the order.

5. The same view has been expressed by another eminent Judge Mitter, J., in Damodur Biddyadhur v. Syamanund Dey [1881] 7 Cal. 885 where the learned Judge said:

A Magistrate would have no jurisdiction under Section 530 (S. 145 of the present code) unless he was satisfied that there exists a dispute concerning lands and which dispute is likely to induce a breach of the peace that is, there must be a reasonable apprehension that a disturbance of the peace is likely to occur, rendering it necessary for the Magistrate to take immediate action under Section 530, Criminal P.C., to prevent the apprehended breach of the peace.

6. For this view the learned Judge has relied upon a number of decisions begining with Hervey v. Brice [1865] 4 W.R. 26 The same view was adopted in Janu Manjhi v. Maniruddin [1901] 8 C.W.N. (sic) where the word 'immediate' is used in place of 'imminent.' In Surja Kanta v. Jagadindra Nath [1906] 11 C.W.N. 198 and in Maharaj Bahadur Singh v. Raja Ranjit Singh [1906] 11 C.W.N. 835, where the police report said that though there was nothing to show that there was a likelihood of a breach of the peace, it was not impossible that there might be a breach of the peace It is better to avoid the use of words lik. 'imminent' or 'immediate' which have been objected to but what I understand by the use of the words 'dispute likely to cause a breach of the peace exists,' is that the dispute must exist and it should be of such a character as likely to cause a breach of the peace unless proceedings are now taken under Section 145, Criminal P.C. In other words, proceedings are to be taken under that section in order to avert a breach of the peace which would otherwise take place due to the existence of a dispute between the parties. As I have pointed out, the police report on which the Magistrate relies does not show that there was any likelihood of a breach of the peace at the time when the proceedings were drawn up by it but it shows that there was a possibility of a collision between the parties at a future time namely, about two months from that date. The learned Magistrate has in his explanation referred to several circumstances which had happened before drawing up the proceedings showing that there was a likelihood of a breach of the peace. The proceedings would have been in order if reference were made to those circumstances. But the learned Magistrate who is not the Magistrate who has submitted the explanation relies solely upon a report which does not show that there was any likelihood of a breach of the peace existing at the time.

7. On this ground alone this rule, in my judgment, must be made absolute and the proceedings under Section 145, Criminal P. C, drawn up by the learned Magistrate on 26th June 1928, must be set aside. It will be of course open to the Magistrate to draw up fresh proceedings upon sufficient materials if the likelihood of a breach of the peace still exists.

Graham, J.

8. The rule in this case was issued on three grounds. I agree that it should be made absolute on the first of those grounds which briefly stated is that the proceedings were without jurisdiction. It is well settled that it is the existence of a dispute likely to cause a breach of the peace which confers jurisdiction on the Magistrate to initiate the proceedings. The word used in the section is 'exists' and there can be no doubt that the dispute existed. It is clear, however, from the police report that there was at the time no likelihood of any breach of the peace, and indeed that no such likelihood had existed for about a month previous to the submission of the police report. All that was disclosed in that report was that there was a likelihood at some future date of a breach of the peace. That according to the current of decisions in this Court was not sufficiens to give jurisdiction. For these reasons I agree with my learned brother that this rule must be made absolute.


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