AJIT KUMAR GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The learned Executive Magistrate, Calcutta who is also the Metropolitan Magistrate, 3rd Court drew up a proceeding under section 107 of the Cr. P.C. and issued show ea use notice upon the petitioners, for executing bond of Rs. 500/- each with one surety by maintaining peace. The petitioners challenge this pro ceding drawn up by the learned Magistrate and also the notice issued in pursuance thereof. Mr. Shyam -Sunder Pal, the learned advocate appearing for the petitioners has contended that the learned Magistrate had no, material whatsoever for drawing up proceeding against the petitioners. None has appeared for the O.P. No.1. Jiban Krishna Ghosh. Mrs. Alokananda Basu the learned advocate for the State, O.P. No. 2. She has supported the contention of the learned advocate for the petitioners.

(2.) It is found that the order of the learned Magistrate was not warranted. The learned Magistrate called for the police report. That report was submitted on 1.8.1982. From the report it would appear that the petitioners had all valid documents respecting the sweet meat shop. As per report the petitioners were found there. The complainant O.P. on the other hand was not there and wag contacted at a different place. The Police officer virtually found possession with the petitioners. Then in the last part of the paragraph, the Police Officer commented that there was an apprehension of breach of peace over the issue of taking possession of the said sweet meat shop. That was a stray comment and it seems the police officer had added that as a secure of abundant caution. The learned Magistrate had to apply his judicial mind whether in fact there was any such apprehension. Secondly, even if there was an apprehension, that apprehension according to the police report could originate from the O.P. complaint. Section 107 contemplates that the person who is likely to cause breach of peace is to be bound down and not the person who remained in peaceful possession. Thus there was a flagrant breach of the spirit of section 107 of the Cr. P.C. It is also found that the notice issued upon the petitioners was not in accordance with section 111 of the Cr. P.C. The substance of the information received was not set out.

(3.) The proceedings of the learned Magistrate are vitiated. This must be quashed. The revisional application is allowed. The proceedings of Msc. Case No. 166/82 pending in the court of the learned Executive Magistrate, 3rd Court, Calcutta be quashed. The rule is made absolute.