GOLAP CHAND SAHU Vs. JUGAL PRASAD SAHU

JUDGEMENT

(1.) THIS rule was obtained for quashing a final order of the Magistrate, First Class, Judicial, Dibrugarh under Lakhimpur District, passed by him on 26th July, 1968 at the conclusion of a proceeding Under Section 145, Criminal Procedure Code.

(2.) THE petitioner, who is the first party, filed an application Under Section 145, Criminal Procedure Code, on 13th May, 1967 alleging that he was in exclusive possession of the disputed land and that three days earlier the second party along with his ploughmen wanted to forcibly plough the same, which caused a breach of the peace. The second party resisted the claim and, after consideration of the entire evidence, the learned Magistrate declared that the second party was entitled to possession of the land until evicted in due course of law.

(3.) THE learned Counsel submits that by a Notification of the Government dated 8th January, 1964, there has been an allocation of powers under the Code of Criminal Procedure between the Judicial Magistrates and the Executive Magistrates, and according to the Schedule of that Notification, executive magistrates are empowered to deal with a case Under Section 145, Cr.PC, only at the stage of initiating the proceeding and attach the property. He adds that judicial magistrates have not been allocated with functions to exercise powers Under Section 145, Cr.PC Therefore, there is a lacuna in the notification and the court cannot supply the omission and allow the judicial magistrates to exercise powers Under Section 145, Criminal Procedure Code. The learned Advocate -General, Assam, in opposing this revision application, resists the contention of Mr. Choudhuri and submits that the aforesaid notification of 8th January, 1964 is constitutionally valid and the same is not open to any valid legal objection. He further submits that powers under the Code of Criminal Procedure are not taken away under the provisions of this notification.