KANAILAL CHATTOPADHYAY Vs. SATIRANI GHOSAL

JUDGEMENT

(1.) THIS reference by the Additional Sessions judge, 2nd Court, Hooghly, under section 438 of the Code of Criminal procedure is for quashing an interim order passed by the Sub-Divisional executive Magistrate, Serampore in a proceeding under section 147 of the Code of Criminal Procedure. The short point that falls to be determined in this Reference is whether the learned magistrate had authority to pass interlocutory order pending decision as to the right claimed in the proceeding. The facts leading upto the present reference may be briefly stated

(2.) THE first party filed an application before the Sub-Divisional Executive magistrate, Serampore, inter alia, praying for drawing up of a proceeding under section 144 and sec. 107 of the code of Criminal Procedure against the second party petitioners on the allegation that he had a right to discharge water from his house into the tank recorded in plot No. 2834 of Mouza serampore, owned and possessed by the second party and the neighboring public similarly had a right to use the water or me tank for irrigating their lands. The first party alleged that the second party was trying to fill up the tank and this was likely to lead to a breach of peace and accordingly prayed for drawing up of a proceeding. The learned Magistrate asked the Officer-in-Charge, serampore Police Station to make an enquiry. The police recommended that a proceeding under section 145 of the Code of Criminal procedure be drawn up and the property be attached. The learned magistrate asked both the parties to show cause and at the same time, directed the parties to maintain status quo. Upon reading the police report and on consideration of the materials before him, the learned magistrate held that the right or the first party to discharge water of his house will not be interfered with, even if the tank in question was filled up. But from the record of rights the learned Magistrate found that the tank which was proposed to be filled up, was meant for the use of the local people and held that right will be interfered with, if the tank was filled up. As the police report recited that there was apprehension of breach of peace over the issue, he drew up a proceeding under sec. 147 Cr. P. Code against the second party asking them not to interfere with the rights of the petitioner and other people to draw water of the said tank by filling up the same.

(3.) AGAINST this order, the second party moved the learned Additional sessions Judge, Hooghly, for quashing the order and the learned Judge has made the Reference recommending that the order passed by the learned Magistrate was illegal as it was made without holding any enquiry and accordingly recommended that the order be quashed.