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Kedar Nath Sikdar and ors. Vs. Bijoy Mandal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in123Ind.Cas.647
AppellantKedar Nath Sikdar and ors.
RespondentBijoy Mandal and ors.
Cases ReferredKailash Chandra Pal v. Kunjo Behary Poddar
Excerpt:
criminal procedure code (act v of 1898), sections 144, 145 - order under section 144--power of district magistrate to set aside order and direct magistrate to start proceedings under section 145--revision by high court--interference. - zahhadur rahim zahid suhrawardy, j.1. this rule is directed against an order of the district magistrate of jessore, dated the 10th november, 1928, setting aside an order passed by the sub-divisional officer under section 144, criminal procedure code, and directing him to draw up proceedings under section 145, criminal procedure code. this rule was issued upon the ground that the learned district magistrate was wholly in error in directing the learned sub-divisional magistrate to draw up a proceeding under section 145. in my opinion, the ground upon which this rule was issued, so far as it goes, is correct. under section 144 (4), criminal procedure code, the district magistrate is entitled to set aside the order made by a subordinate magistrate. but there is no provision in the law that he.....
Judgment:

Zahhadur Rahim Zahid Suhrawardy, J.

1. This Rule is directed against an order of the District Magistrate of Jessore, dated the 10th November, 1928, setting aside an order passed by the Sub-Divisional Officer under Section 144, Criminal Procedure Code, and directing him to draw up proceedings under Section 145, Criminal Procedure Code. This Rule was issued upon the ground that the learned District Magistrate was wholly in error in directing the learned Sub-Divisional Magistrate to draw up a proceeding under Section 145. In my opinion, the ground upon which this Rule was issued, so far as it goes, is correct. Under Section 144 (4), Criminal Procedure Code, the District Magistrate is entitled to set aside the order made by a Subordinate Magistrate. But there is no provision in the law that he can order a Subordinate Magistrate to draw up proceedings under any other section. The revisional powers exercised by the Courts below are much restricted and do not extend to the wide powers given to this Court under Section 439 which have been made co extensive with the powers of an Appellate Court under Section 423, Criminal Procedure Code The proper course for the District Magistrate when he was of opinion that proceedings under Section 144 had been wrongly drawn up and that the right course would be to take action under Section 145 was to make a reference to this Court under Section 438.

2. In support of the ground on which this Rule has been issued reliance has been placed on the case of Kailash Chandra Pal v. Kunja Behary Poddar 24 C. 391 : l C.W.N. 393. That case supports the view that I have ventured to take that a District Magistrate has no authority to remand a case to a Subordinate Magistrate to take action under Section 145, Criminal Procedure Code. But there is a distinguishing feature in this case which, puts the petitioners out of Court. In that case the Sub-Divisional Officer drew up proceedings under Section 144 against a certain party on the result of previous cases between the parties which came up to the High Court and in which it was held that one of the parties was in possession. The District Magistrate was moved and he held that proceedings under Section 144, Criminal Procedure Code were not rightly drawn up and directed the Sub-Divisional Officer to institute proceedings under Section 145, Criminal Procedure Code. Thereupon the Sub-Divisional Officer drew up proceedings under Section 145. Against that order of the Subordinate Magistrate a Rule was obtained from this Court. The learned Judges held that the District Magistrate had no authority to direct the Sub-Divisional Magistrate to institute proceedings under Section 145; and as the proceeding drawn up by the Subordinate Magistrate was not based upon Police report or other information showing likelihood of a breach of the peace but was based on the order of the District Magistrate, they set aside the order of the District Magistrate as also the proceeding before the Sub-Divisional Officer. In the present case there was a Police report upon which the Magistrate instituted proceedings under Section 144. That order was set aside by the District Magistrate. The Sub-Divisional Magistrate thereupon drew up proceedings under Section 145, Criminal Procedure Code, in which he said that he was satisfied from the Police report that there was a likelihood of a breach of the peace. So in the case before us the Sub-Divisional Magistrate considered the materials before him under Section 145 and it cannot be said that they were instituted without jurisdiction. The learned Advocate for the petitioner argues that as the order passed by the District Magistrate directing the Sub- Divisional Magistrate to institute proceedings under Section 145 was wrong, the entire proceedings including the proceeding under Section 145 instituted by the Sub-Divisional Magistrate should be set aside. This I am not prepared to do, for the present Rule is obtained not against the order of the Sub-Divisional Magistrate drawing up proceedings under Section 145 but against the order of the District Magistrate remanding the case to the Sub-Divisional Magistrate, though I do not admit that we have no jurisdiction to set aside that proceeding as a consequential order to the order of the District Magistrate. Secondly, when the Sub-Divisional Magistrate drew up proceedings under Section 145, he had sufficient materials before him on which he relied, Though no doubt he was led to this course because of the direction given by the District Magistrate, but he did not act without jurisdiction or illegally in instituting proceedings under Section 145 when it was pointed out to him by his superior Court that his view relating to the possession of one of the parties was wrong. Thirdly, considering the state of the feeling between the parties it would not be right to drop the proceedings and leave the parties to fight. I would accordingly discharge this Rule.

Graham, J.

3. I agree. There was no doubt an irregularity in not giving notice to the opposite party (the present petitioners) before the order of the 10th November, 1928, was passed, but with all the materials before us it seems to be clear that the Magistrate based his order under Section 145 upon the Police report and that he had jurisdiction to make that order. The case of Kailash Chandra Pal v. Kunjo Behary Poddar 24 C. 391 : l C.W.N. 393 to which reference has been made is distinguishable from the facts of the present case because there was apparently no Police report and the order drawing up the proceedings was based entirely upon the direction of the District Magistrate.


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