USHARANI BEJ Vs. MONGAL MUNDA

JUDGEMENT

(1.) THE second party to a proceeding under Section 145 of the Code of Criminal Procedure obtained this Rule against the order of, the learned Magistrate in the proceeding declaring possession with the first party and restraining the second party men from interfering with that possession except in due course of law. Opposite party No. 1 as the first party applied to a Magistrate holding a camp Court at Kakdwip that he was in possession of certain lands as bhagidar, that the present petitioners have raised a dispute over that land and have been trying forcibly to harvest the standing crop with the help of lathials. Preventive action under Section 144 of the Code of Criminal Procedure was prayed for. It was further stated that over this dispute, the first party had earlier initiated a proceeding under Section 144 of the Code of Criminal Procedure in a case which was numbered M 18 of 1967 and that a restraint order under the section had been made in that case against the present petitioners.

(2.) THE learned Magistrate in his order on this petition mentioned that he had seen a report of enquiry and the order made by him in cases Nos. M 13 of 1967 and M 207 of 1967. He found that an order of injunction under Section 144 of the Code of Criminal Procedure had been passed against .the second patty to the proceeding during the period of cultivation. As causing of an enquiry will entail delay and as there was a grave and serious apprehension of a breach of the peace according to the learned Magistrate, he issued an order under Section 144 of the Criminal P. C. upon the present petitioners restraining them from going upon the land in dispute.

(3.) MR . Haider appearing in support of the rule contends that there were no materials whatsoever before' the learned Magistrate to satisfy him about the necessity for action under Section 144 of the Code and that if there were no such materials which could have provided the necessary satisfaction in that regard, the proceeding that was drawn up was without jurisdiction. The second objection to the proceeding is that the dispute as to the share of the paddy grown on the land concerned is not a dispute as to 'land and water' which might justify a proceeding. The third contention is that the affidavits filed by the respective parties were never considered by the learned Magistrate in coming to his finding on the question of possession and, lastly, that a suit over the land in dispute being pending in the civil Court between the parties, a proceeding under Section 144 of the Criminal P. C. was unwarranted and it was improper of the learned Magistrate to have drawn up the proceeding.