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Rasik Chandra Hore and anr. Vs. Jagabandhu Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in62Ind.Cas.326
AppellantRasik Chandra Hore and anr.
RespondentJagabandhu Roy and ors.
Excerpt:
criminal procedure code (act 7 of 1898), section 145 - breach of the peace, absence of evidence of likelihood of--magistrate, whether has jurisdiction. - .....there is no evidence of, and nothing in the proceedings showing, the likelihood of a breach of the peace as between the third party and the first two parties or either of them. the third party had never been a party to the dispute between the first two parties, on which dispute proceedings were instituted, and, therefore, the order of the magistrate must be set aside as being without jurisdiction. the consequential order as to costs must also be set aside as a necessary consequence of this order.ghosh, j.2. i agree.
Judgment:

Beachcroft, J.

1. This Rule was issued on the second ground stated in the petition, namely, that there being nothing to show that there was any likelihood of a breach of the pease between the first and the second parties on the one hand and the third party on the other, there was no foundation for a proceeding under Section 145 so far as the third party was concerned and the whole of the proceedings were without jurisdiction. To understand the meaning of this it is necessary to state the facts. The proceeding was originally drawn up in respect of three persons,--two members of the first party and one person who is the second party. The dispute concerned a jalkar. Subsequently a number of other persons applied to be added as parties to the proceeding. They alleged that the jalkar was theirs, they being co sharer landlords. They alleged at the same time that there was no likelihood of a breach of the peace. The case was transferred from the Magistrate who initiated the proceeding, and then the first two parties filed a 'compromise mentioning that there was no longer a likelihood of a breach of the peace as between them. The Magistrate finally made an order in favour of the third party. We are told that there is, in fact, on the record no evidence of any likelihood of a breach of the peace as between the first two parties; and that appears to be borne out by the statement of the Magistrate in his judgment that the first two parties had combined against the third. The flaw in the proceeding appears to be this, that there is no evidence of, and nothing in the proceedings showing, the likelihood of a breach of the peace as between the third party and the first two parties or either of them. The third party had never been a party to the dispute between the first two parties, on which dispute proceedings were instituted, and, therefore, the order of the Magistrate must be set aside as being without jurisdiction. The consequential order as to costs must also be set aside as a necessary consequence of this order.

Ghosh, J.

2. I agree.


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