AMAR CHAND BAID Vs. STATE

JUDGEMENT

(1.) This is an application under Section 401 of the Code of Criminal Procedure for setting aside of the order dated 18-8-95 passed by the Learned Executive Magistrate, Sealdah in M.P. Case No. 2217 of 1995 (Rejendra Prahladka v. Amar Chand Baid) being Annexure ' C' to the petition.

(2.) Mr. Balai Chandra Roy, Learned Senior Advocate on behalf of the petitioner has submitted that the Learned Executive Magistrate acted in excess of his jurisdiction in passing the said order under Section 144 of the Criminal Procedure Code. It is the contention of Mr. Roy that while passing an order under Section 144 of the Criminal Procedure Code, the Magistrate must record his satisfaction on the basis of materials on record about the breach of peace and about the necessity of maintaining peace when there is apprehension of nuisance and danger and that such order is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot or an affray. Mr. Roy, learned Advocate has referred to Section 144 of the Code of Criminal Procedure and also relied upon the Judgment and decisions in the case of (1) Dayamay Bhattacharya v. Surya Kanta Sur reported in, 1989 Cri LJ 1651 (Cal), and in the case of (2) Raj Kumar Rawal v. Madan Gopal Rawla reported in, 1991 Cal Cri LR 233.

(3.) Mr. Jaymalya Bagchi, Learned Advocate appearing on behalf of private opposite party No. 2 on the other hand has submitted that there cannot be any dispute about the breach of peace since the petitioner also complained of the same by filing an application and as such the Learned Executive Magistrate did not consider it necessary to record his satisfaction. He has further submitted that since it is recorded in the order of Learned Magistrate that he has seen papers and the documents filed by both the parties. The Magistrate is satisfied about the breach of peace. According to him the decisions cited by the learned Advocate for the petitioner cannot have any application in the circumstances of the instant case since the petitioner has also filed an objection apprehending breach of peace.