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Phani Bhusan Roy and ors. Vs. Kunja Behari Biswas - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in81Ind.Cas.167
AppellantPhani Bhusan Roy and ors.
RespondentKunja Behari Biswas
Excerpt:
criminal procedure code(act v of 1898), sections 107, 438 - order refusing to take action under section 107--sessions judge, power of, to set aside order. - .....issued at the instance of phani bhushan roy the object of which was to set aside the order of the sessions judge of dacca, dated the 14th august 1923. it appears that at the instance of kunja behari biswas who was an officer under one ashutosh ghose, an application was made to the sub-divisional officer to draw up proceedings under section 107, criminal procedure code, against phani bhusan roy and others. the sub-divisional officer passed an order stating that he was not satisfied, that it was necessary that proceedings should be drawn up but at the same time he directed the police to keep an eye upon the parties and arrest them if any breach of the peace was likely to be committed. against this order an application in revision was made to the sessions judge of dacca and he has clearly.....
Judgment:

1. In the first of these Rules, No. 897 of 1923, a Rule was issued at the instance of Phani Bhushan Roy the object of which was to set aside the order of the Sessions Judge of Dacca, dated the 14th August 1923. It appears that at the instance of Kunja Behari Biswas who was an officer under one Ashutosh Ghose, an application was made to the Sub-Divisional Officer to draw up proceedings under Section 107, Criminal Procedure Code, against Phani Bhusan Roy and others. The Sub-Divisional Officer passed an order stating that he was not satisfied, that it was necessary that proceedings should be drawn up but at the same time he directed the Police to keep an eye upon the parties and arrest them if any breach of the peace was likely to be committed. Against this order an application in revision was made to the Sessions Judge of Dacca and he has clearly passed an order which is beyond his powers in that he set aside the Magistrate's order which had in effect dismissed the application and directed that proceedings should be drawn up under Section 107, Criminal Procedure Code, in accordance with the Police report which has been read to us. Now, clearly the Sessions Judge has no jurisdiction to make an order of this kind and the Rule must be made absolute. We have been asked, however, by the learned Vakil who appeared on behalf of Kunja Behari Biswas to, in effect, treat the order of the Sessions Judge as a reference to us and to make the order which the Sessions Judge has thought fit to make. But we see no reason to take this somewhat unusual course. After all, some seven months have elapsed since the order of the Sub-Divisional Officer was passed and no breach of the peace has taken place; and we think that the order of the Sub-Divisional Officer has justified itself and, moreover, it will be open to the Police, if in future any breach of the peace is threatened, to apply again to the Sub-Diyisional Officer. For these reasons we make the Rule numbered 897 of 1923 absolute.

2. The other Rule was granted also at the instance of Phani Bhushan Roy and its object was to set aside the dismissal, tinder Section 203, of his complaint. Both the Sub-Divisional Officer and the Sessions Judge have taken the same view, namely, that this complaint was not well-founded and have dismissed it under Section 203. There seems, therefore, no reason why we should interfere with the order of the Sessions Judge in this case and accordingly Rule No. 935 of 1923 is discharge.


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