HARIPADO MAZUMDAR Vs. DHANI AHAMAD SARKAR

JUDGEMENT

(1.) THIS rule is directed against an order passed by the Sub-Divisional Magistrate of Mainckgunge, in the District of Dacca on 11 of June, 1934 restraining the petitioners from entering upon the lands which were the subject matter of a proceeding under Section 144, Criminal P.C., started by the Magistrate. It appears that on the facts and in the circumstances appearing from the Magistrate's order, to which reference has been made above, the proceeding under Section 144, Criminal P.C., was somewhat misconceived and was not an appropriate proceeding under the law. The Magistrate thought that a previous order of the year 1919, made under Section 145 of the Code, stood in his way so far as the initiation of fresh proceeding under Section 145 Criminal P.C., was concerned. With this view of the case we are not in agreement as the question to be taken into consideration by a Criminal Court under Section 145, Criminal P.C., is the question as to the present possession of the parties concerned. In this view of the matter, we are not at one with the Magistrate when he observes in his order that the decision of the Court in 1919 precluded him from starting a fresh proceeding under Section 145, Criminal P.C.

(2.) THE order passed under Section 144 Criminal P.C., by the Magistrate, is set aside and it would be quite legal and competent for a Magistrate to initiate a proceeding under Section 145 Criminal P.C., in view of the position that the order made in the previous proceeding under Section 145, Criminal P.C., did not and could not legally bar the initiation of a fresh proceeding, if there be reasonable grounds for such initiation, as contemplated by law. THE rule is made absolute and the order passed by the Magistrate on 11 June 1934 is set aside.