GANESH CHANDRA KHAN Vs. LALIT MOHAN NAYAK

JUDGEMENT

(1.) This Rule is directed against an order which was originally made on 7 December 1933, and thereafter affirmed on 20 December 1933, by the Additional Chief Presidency Magistrate, Calcutta. The order purports to have been made Under Section 144, Criminal P.C.

(2.) The facts necessary to be stated are very few. The petitioner is erecting a building on plot No. 73-A, Bagbazar Street. His own house stands at a distance of about 10 feet from the place where the foundation is being constructed. The opposite party appears to have got a house which stands at a distance of about 20 feet from this place. The petitioner is driving piles into the soil apparently for the purpose of strengthening the foundation of his building. The opposite party thereupon applied to the Magistrate stating that the petitioner had started, to sink big wooden pins for laying the foundation without having taken proper precautions and that the result had been that on account of the jerk and impact due to the driving of the pins two arches on the ground floor of the opposite party's house have beep cracked. On these allegations he asked for an order Under Section 144, Criminal P.C., as against the petitioner. Such an order, as already stated, was thereupon made by the learned Magistrate on 7th December 1933; and thereafter on hearing both parties the learned Magistrate on 20th December 1933 affirmed that order in these words: Engineers and eye-witnesses prove that the cracks in the arches of the house of Lalit Mohan, that is to say, the opposite party, are due to driving of pins in the land of the other party and other construction work, and it is not safe either for the house of the petitioner or for the occupants. Injunction made absolute.

(3.) Now, the circumstances which would justify the Magistrate in making an order Under Section 144 of the Code are set out in Sub-section 1, Section 144. The first thing which he has got to be satisfied about is that there is sufficient ground for proceeding Under Section 144 and an immediate prevention or speedy remedy is desirable; and the second element which has got to be established is that the Magistrate should consider that the direction which he is about to give is one which is likely to prevent or tends to prevent, obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or an affray. If one takes into consideration the facts of the present case, what the learned Magistrate had got to be satisfied about in making an order Under Section 144 of the Code, in so far as the second of the aforesaid elements is concerned, was that the direction was likely to prevent injury or risk of injury to human life or safety. The question of injury to property, as distinguished from danger to or safety of human life occupying the property, has got very little relevancy.