SUKCHAND ROY Vs. SEFAZUDDIN MOHAMMAD

JUDGEMENT

(1.) This is a reference under Section 438 of the Code of Criminal Procedure by Sri T. P. Mukherjee, Sessions Judge, Jalpaiguri, recommending that the final order passed in a proceeding under Section 145 of the Code of Criminal Procedure be set aside on the ground of defect of parties. Proceedings under Section 145 Cr. P. C. were commenced on the petition of Sukchand Roy who claimed certain land on behalf of his mother-in-law Subasini Debya. The learned Magistrate after a police enquiry was satisfied that there was an apprehension of a breach of the peace and he drew up proceedings under Section 145 Cr. P. C., and after considering the affidavits and documents filed by the parties under the amended procedure, passed an order in favour of the 1st party holding that Sukchand Roy was in possession of the disputed land on behalf of his mother-in-law and forbidding disturbance of such possession until the 1st party was evicted in the course of law.

(2.) The learned Sessions Judge of Jalpaiguri has made this reference on the ground that the party actually interested was Subasini Debya and she was not made a party; and the learned Judge has held relying on a decision of the Calcutta High Court in Behary Lal v. Darby, ILR 21 Cal 915 and a decision of the Assam High Court in Rup Chand v. Bhagalu Singh, AIR 1954 Assam 77 that without impleading the party who was the owner of the land the proceeding could not be maintained. In the Assam Case AIR 1954 Assam'77, it was held that a servant could not maintain a proceeding under Section 145 on behalf of his master and such a proceeding must be quashed. This was a decision by a Single Judge, but there was a reference to a Full Bench decision of this Court, namely, Dhondhai Singh v. Follet, ILR 31 Cal 48 (FB), where it was held that the Court had jurisdiction under Section 145 Cr. P. C. to make an order in favour of a person who claimed to be in possession as an agent or manager for proprietors, where the actual proprietor was not residing within the appellate jurisdiction of the High-Court. There being no evidence in the Assam case that the master was not residing within the jurisdiction of the High Court, his Lordship held mat the servant was not entitled to maintain the proceeding and the proceeding was quashed as already stated. In the present case, Mr. Chakravatty who is appearing on behalf of the 2nd party has argued that in this case there was no evidence that Subasini Debya was residing outside the jurisdiction of the-High Court, that she was residing outside West Bengal, and that in the circumstances it should have been held that the proceeding was not maintainable at the instance of her son-in-law Sukchand Roy. But in a more recent Division Bench Case of this High Court, namely, Turu Majhi v. State, it was held that there was no legal bar to the landlord being represented by his officer in a proceeding under Section 145 Cr. P. C. It was not considered necessary that as a condition precedent to* the officer maintaining the proceeding on behalf of the landlord, it should be found that the landlord was residing outside the jurisdiction of the High Court.

(3.) Mr. Amal Chandra Roy appearing to oppose the reference has also referred to a decision of Madhya Bharat High Court, namely, Ratan Singh v. Raghubir Singh, AIR 1952 Madh B 165 where the facts were somewhat similar to the present case. The mother-in-law was the owner of certain property and the son-in-law as agent represented her in a proceeding under Section 145 Cr. P. C., it was held that there was no serious defect in the proceeding and it was maintainable.