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Ranada Ranjan Bhattacharjee Vs. Bharat Chandra Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal631,62Ind.Cas.180
AppellantRanada Ranjan Bhattacharjee
RespondentBharat Chandra Saha and ors.
Excerpt:
criminal procedure code (act v of 1898), section 145, sub-sections (1), (5) - order under subsection (1), when liable to be cancelled--absence of finding of magistrate that there is likelihood of breach of peace, whether goes to root of his jurisdiction--high court's non-interference. - .....exists. then it is open to either of the parties under sub-section (5) of section 145 to show that no such dispute exists or has existed. if a party succeeds in doing that, the magistrate must cancel his order, but subject to that cancellation the order of the magistrate under sub-section (1) shall be final. the effect of this is that unless a party is in a position to show to the magistrate that there is no likelihood of a breach of the pease, the magistrate's order under sub-section (1) stands. therefore, it follows that the mere absence of a finding by the magistrate that there is likelihood of a breach of the peace does not go to the root of his jurisdiction and is not in itself sufficient for our interference with his order. here all that has happened is that both parties denied.....
Judgment:

1. This Rule was issued at the instance of the first party in a proceeding under Section 145, Criminal Procedure Code. The Rule was issued on the second ground in the petition, which was as follows: For that having regard to the admission of both parties that there was no likelihood of a breach of the pease, the learned Magistrate ought to have enquired into and de-sided that point first and the subsequent pro-seeding was without jurisdiction. Under Section 145 the Magistrate has jurisdiction to take proceedings if he is satisfied from the Police report or other information that a dispute likely to cause a breach of the pease exists. Then it is open to either of the parties under Sub-section (5) of Section 145 to show that no such dispute exists or has existed. If a party succeeds in doing that, the Magistrate must cancel his order, but subject to that cancellation the order of the Magistrate under Sub-section (1) shall be final. The effect of this is that unless a party is in a position to show to the Magistrate that there is no likelihood of a breach of the pease, the Magistrate's order under Sub-section (1) stands. Therefore, it follows that the mere absence of a finding by the Magistrate that there is likelihood of a breach of the peace does not go to the root of his jurisdiction and is not in itself sufficient for our interference with his order. Here all that has happened is that both parties denied that there was likelihood of a breach of the pease. Experience unfortunately shows that where proceedings are stopped on such an allegation by the parties, the result may be serious and often is the breaking of heads. The Rule is discharged.


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