BAISNAB CHARAN MAJHI Vs. GATINATH MUNSHI

JUDGEMENT

(1.) This was a Rule calling upon the District Magistrate and the opposite party to show cause why the order attaching a certain jalkar should not be set aside, on the ground that the Magistrate had no jurisdiction to proceed, after all the members of the second party had been bound down under Section 107 of the Criminal Procedure Code, on the 9th December 1910, in a prior proceeding.

(2.) The proceedings under Section 145 were taken on the 23rd February 1911, and the order complained of was passed on the 4th May 1911, and the Magistrate finding it impossible to determine who was in possession of the jalkar attached the property under Section 146. Now, it would be impossible for us to say that in no case can the fact that one party had been bound down to keep the peace under Section 107 leave the Magistrate any jurisdiction to act under Section. 145 when the circumstances so require, and we cannot see our way to making this Rule absolute without laying down such a general proposition. Certainly on the facts of this case it was quite open to the Magistrate to hold that there was a probability of a breach of the peace in respect of the possession of this jalkar, even although the members of the second party had been bound down. There were many persons who are said to be interested in the jalkar who absconded at the time of the 107 proceeding. The second party say that they have a reasonable apprehension that these persons may, by claiming rights in this jalkar, cause a breach of the peace with the first party, who are admittedly fishermen; or the first party, being fishermen, may very naturally seek to enforce their rights against the second party who have been bound down, in which case the order binding down the second party will have the effect of ousting them from any possession which they may have.

(3.) It would seem that in this state of facts the right course for the Magistrate to take would be the course he has taken, namely, to try and discover who is in actual possession of this jalkar. He finds himself unable to do so, and he, therefore, properly exercises his jurisdiction under Section 146. The fact that the order under Section 107 of the Criminal Procedure Code expired in December 1911 does not, of course,. in any way affect the legal aspect of the case, but it certainly renders us less disposed in the exercise of our discretion to interfere with any measure that the Magistrate has thought it necessary to take for the preservation of the peace in his district. The Rule is discharged.