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Hanif Sheikh Alias Hanif Mandal and ors. Vs. Jabani Mandal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in72Ind.Cas.367
AppellantHanif Sheikh Alias Hanif Mandal and ors.
RespondentJabani Mandal and ors.
Excerpt:
criminal procedure code (act v of 1898), section 107, proceedings under--proceedings by subordinate magistrate under order of district magistrate, propriety of. - .....was necessary, in order to prevent a breach of the peace, to take proceedings under section 107, criminal procedure code, against the petitioners he should have himself drawn up such proceedings and he might then have transferred the case to a subordinate magistrate for hearing. but he should not, as he has done, direct proceedings to be drawn up by a subordinate magistrate, nor should the subordinate magistrate draw up proceedings merely because the district magistrate has ordered him to do so. he has full power under section 107, criminal procedure code, to take action under that section when he thinks it is necessary to do so to prevent a breach of the peace. but in deciding as to the necessity for action he must come to a conclusion of his own accord on the materials before him and.....
Judgment:

1. The form of the order made by the District Magistrate in this case is improper. If he thought that it was necessary, in order to prevent a breach of the peace, to take proceedings under Section 107, Criminal Procedure Code, against the petitioners he should have himself drawn up such proceedings and he might then have transferred the case to a Subordinate Magistrate for hearing. But he should not, as he has done, direct proceedings to be drawn up by a Subordinate Magistrate, nor should the Subordinate Magistrate draw up proceedings merely because the District Magistrate has ordered him to do so. He has full power under Section 107, Criminal Procedure Code, to take action under that Section when he thinks it is necessary to do so to prevent a breach of the peace. But in deciding as to the necessity for action he must come to a conclusion of his own accord on the materials before him and act accordingly.

2. We accordingly set aside the order of the District Magistrate passed on the 3rd of December 1922, directing proceedings under Section 107, Criminal Procedure Code to be drawn up by the Sub-Divisional Magistrate against the petitioners. This order will be no bar to either the District Magistrate or the Sub-Divisional Magistrate drawing up proceedings against the petitioners should they think it necessary to do so in order to prevent a breach of the peace.


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