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Ashutosh Roy and ors. Vs. Haris Chandra Chattopadhya and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal625
AppellantAshutosh Roy and ors.
RespondentHaris Chandra Chattopadhya and ors.
Excerpt:
- .....to basantapur hat by force or by committing violence to the people so as to dissuade them from attending hingulganj hat and not to commit any breach of the peace or disturb the public tranquillity. on the 28th october the police submitted further reports and on the basis of one of these a fresh injunction under section 144, cr. p.c. was drawn up. this is the order against which the present rule is directed. although the magistrate was called on to submit the record of this case the record which has been submitted does not contain the order of the 21st november. a copy of this order has been supplied to us from the bar and it is in the following terms.-'whereas i am satisfied from the report of the sub-inspector of kaliganj dated the 23rd october 1924 and from the evidence adduced.....
Judgment:

1. This Rule is directed against an order passed by the Sub-divisional Magistrate of Satkhira under the provisions of Section 144, Cr. P.C. It appears that there is a dispute existing between the first and the second parties in respect of two rival Hats. The Magistrate has found that the first party are the proprietors of the older Hat, the Hingulganj Hat and that the second party's Hat at Basantapur has been recently opened, and he further held that this dispute is likely to cause a breach of the peace. On these findings he issued an injunction on the 22nd September 1924 against 13 persons of the second party directing them to abstain from holding or attending the Hat at or near Basantapur on Sundays and Thursdays and not to do any unlawful acts by taking dealer's boats to Basantapur Hat by force or by committing violence to the people so as to dissuade them from attending Hingulganj Hat and not to commit any breach of the peace or disturb the public tranquillity. On the 28th October the Police submitted further reports and on the basis of one of these a fresh injunction under Section 144, Cr. P.C. was drawn up. This is the order against which the present Rule is directed. Although the Magistrate was called on to submit the record of this case the record which has been submitted does not contain the order of the 21st November. A copy of this order has been supplied to us from the Bar and it is in the following terms.-'Whereas I am satisfied from the report of the Sub-Inspector of Kaliganj dated the 23rd October 1924 and from the evidence adduced before me by both aides that a rival Hat is being held at Basantapur P.S. Kaliganj within the local limits of my jurisdiction at a distance of about 500 ft. from the old and long established Hat at Hingulganj P.S. Hasnabad on Sundays and Thursdays (the day on which the Hingulganj Hat is held) whereby the public tranquillity is being disturbed and for which breach of the peace dangers to the public safety, riot and affray are imminent, and whereas immediate prevention or speedy remedy of such disturbance is desirable, I do hereby under Section 144, Cr. P.C. direct the public in general from the date of the promulgation of this order to abstain from holding or attending the Hat at or near Basantapur on Sundays and Thursdays and not to do any unlawful acts by taking dealer's boats to Basantapur Hat by force or by committing violence to the people so as to dissuade them from attending Hingulganj Hat and not to commit any breach of the peace and disturb the public tranquillity.'

2. This Rule was issued on the ground that the said order of the 20th November 1924 virtually extended the period of two months so far as the second party are concerned. On a comparison of the two orders there can be no doubt that this ground has been substantiated. The only substantial difference between the two orders is that one is directed against 13 persons and the other against the public generally. The period during which an order under Section 144, Cr. P.C. remains in force is two months only and it cannot be extended beyond that period by the Magistrate. In the second order the directions are the same but a larger number of persons are affected by it. To draw up the same order merely adding to the parties affected is an attempt to evade the provisions of Clause (6) of Section 144, Cr. P.C.

3. We may further point out that the order is bad in form. Although Clause (3) of Section 144 provides that an order under this section may be directed to particular individuals or to the public generally when frequenting or visiting a particular place, it does not provide for the issue of an order to the public generally except as qualified by the last line of the clause. The order can only be issued to the public generally when frequenting or visiting a particular place. This order in so far as it directs the public in general to abstain from attending the Hat is bad, since it is not until the public attends the Hat that the order can be binding on them. They cannot be forbidden by the order to do an act, when the order cannot be addressed to them until after they have done that act.

4. For these reasons we make the Rule absolute and set aside the order of the Sub-Divisional Magistrate of Satkhira dated the 21st November 1924 in these proceedings. To prevent any confusion we may point out that though there is an order for the issue of injunction on the 20th November, 1924, in the order sheet, the actual formal proceedings which were drawn up are dated the 21st November, 1924.


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