BIJENDRA RAI Vs. MOHAN RAI

JUDGEMENT

(1.) This application on behalf of the members of the 2nd party is directed against an order dated 5th of January, 1975 passed by an Executive Magistrate converting a proceeding under Section 144 of the CODE OF CRIMINAL PROCEDURE, 1973 (hereinafter referred to as 'the Code') into one under Section 145 of the Code.

(2.) The dispute between the two parties cropped up in relation to certain landed property. On a police report a proceeding under section 144 of the Code was started by the Sub-divisional Officer, Danapur in the year 1975. Both the parties filed their respective show cause. Whereas the 1st party claimed joint possession and cultivation as members of a joint family with the petitioners the 2nd party asserted that there was a disruption in the family by virtue of a partition by metes and bounds long ago and they were in exclusive possession of the lands.

(3.) On the 5th of January, 1976, i.e. on the date the impugned order was passed, the court of the Sub-divisional Officer, Danapur, was presided over by Shri Md. Shahabuddin, an Executive Magistrate of that place. He on considering the nature of the dispute and the claims put forward by the contesting parties, came to the conclusion that the same could not be disposed of in the proceeding under Section 144 of the Code and proper procedure to be adopted was to convert the proceeding under Section 145 of the Code. He accordingly passed an order converting the proceeding as already said earlier. In the impugned order, he has referred to the matters and materials on the basis of which he came to the conclusion mentioned above.