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Abinash Chandra Mandal and ors. Vs. Lokenath Gani - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal465(1),44Ind.Cas.591
AppellantAbinash Chandra Mandal and ors.
RespondentLokenath Gani
Excerpt:
criminal procedure code (act v of 1898), sections 107, 144, 145 - proceedings, simultaneous, whether proper--dispute as to possession of land--proceedings, proper. - .....apprehension of a breach of the peace, for the magistrate to take proceedings under section 145 rather than under section 107. the question of possession can then be gone into and properly decided. we accordingly make the rule absolute and direct that section 145 proceedings, if any proceedings are now necessary, be substituted for the proceedings under section 107.
Judgment:

1. In this case we have read the explanation of the Magistrate and have heard the learned Pleader for the opposite party but we think that the Rule should be made absolute. It is inconvenient that proceedings under Section 107 and also under Section 144 or 145 should be going on at the same time. In this case it appears that Moti Lal Mandal, one of the petitioners, was the first to go to the Magistrate and apply for his assistance in the matter of possession of this land And the thatching of grass thereon. Then proceedings were taken and an injunction was issued under Section 144 and the petitioners were called on under Section 107, a procedure which in effect debarred them from giving evidence of the possession which they had been the first to allege. The injunction under Section 144 will, we understand, expire at the end of this month. It will be no more appropriate, if there is any present apprehension of a breach of the peace, for the Magistrate to take proceedings under Section 145 rather than under Section 107. The question of possession can then be gone into and properly decided. We accordingly make the Rule absolute and direct that Section 145 proceedings, if any proceedings are now necessary, be substituted for the proceedings under Section 107.


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