Kailash Chandra Pal and Another vs Kunja Behari Poddar

Ghose and Gordon, JJ.—We think that this rule should be made absolute, upon the first ground mentioned in the order of this Court, dated the 27th July last.

It is quite clear that, so far as the Sub-Divisional Magistrate of Narain-gunge is concerned, he thought that no proceedings should be taken u/s 145 of the Code of Criminal Procedure, for the order that he made on the 19th October 1894 was an order u/s 144 of the Code, prohibiting Isaff from interfering with the land which is the subject-matter of the dispute between the parties; and we further find that on the 4th June 1895 he made another order under the same Section (144), similarly prohibiting Kunja Behari, the opposite party before us, from interfering with the land in question. The Magistrate of the district, however, on the 23rd July 1895, was of opinion that it was the duty of the Sub-Divisional Officer to institute proceedings u/s 145, and he accordingly modified the said order of the 4th June 1895. [394] Acting upon this order of the Magistrate of the district, the Sub-Divisional Officer, on the 14th August 1895, instituted proceedings u/s 145. That order runs thus : " Whereas it has been made to appear to me that a dispute likely to lead to a breach of the peace is likely to take place between Kunja Behari Poddar on one side and Kailash Chandra Pal and Isaff on the other, regarding possession to a garden bounded as follows: North by Khajobaigora khal, south by another khal, east by Gora khal of Bari Bedya-nanda and Isaff arable (Tangita) land, west by Bugmuchi khal, it is ordered that the above parties put in written statements in person or by pleader on the 30th August 1895 regarding their respective claims of actual possession about the said garden with any other evidence they may have to offer, and that until the Court orders what party is in possession, no party shall go to the said disputed land under penalty of prosecution." Now there was no police report Or other information before the Sub-Divisional Officer at the time, upon which he could take proceedings u/s 145; and, indeed, it is patent that his proceeding of the 14th August 1895 was entirely based (though he does not say so in so many words) upon the order of the District Magistrate of the 23rd July 1895. The question then arises whether the District Magistrate had authority in law to direct the Sub-Divisional Officer (sic) institute proceedings u/s 145. We think there is nothing in the Code of Criminal Procedure, or in any other law, authorizing the Magistrate of the District in this case to direct proceedings being taken u/s 145. The officer to whom such direction was given was a Sub-Divisional Officer, and it was entirely discretionary with him either to take proceedings or not under that section as he thought proper. We have already said that, so far as he was concerned, he was of opinion that proceedings should be taken u/s 144, and not u/s 145; and we think that the District Magistrate had no authority over him in this respect. Queen-Empress v. Gobind Chandra Das ILR 20 Cal. 520.

The rule will accordingly be made absolute.