ABDUL MAJID BASUNIA Vs. NRIPENDRA NATH MAZUMDAR

JUDGEMENT

(1.) This rule has been issued at the instance of five persons against whom an order Under Section 144, Criminal Procedure Code, was made by the Deputy Magistrate of Jalpaiguri on 11 December 1933. The order was made in connexion with a hat which was established at Taluk Jamgram at a distance of about a furlong from an old and long established hat which was in existence at a place called Baura. The two hats began to sit on one and the same days, namely Mondays and Thursdays. For the purpose of this case it is necessary to set out a few facts. The police of Patgram, within whose jurisdiction the places aforesaid are situate, submitted a report to the effect that there was no apprehension of the breach of the peace by reason of the hats being situated in close proximity to each other and though they were being held on one and the same days, This report was placed before the Sub-divisional Magistrate at the instance of the first party but the Sub-divisional Magistrate was not satisfied that upon such report, challenged though it was by the first party, he would be justified in making an order Under Section 144, Criminal P.C., against the second party.

(2.) On 1 December 1933 he made an order calling upon the first party to adduce evidence on 8 December 1933, in order to show that there was really an apprehension of an immediate breach of the peace and he also made an order calling upon the second party, the petitioners in this Rule, to appear before him and represent their case, if they liked to do so. In the meantime the police appears to have served warning notices Under Section 154, I.P.C., on both the parties. On 8 December 1933 the Sub-divisional Officer was away on tour and the Deputy Magistrate, Mr. K.P. Ghose, was in charge of the current file of the Court of the Sub-divisional Magistrate. He was busy with some other case on that date and could not therefore take up the present case till the next day, i.e., the 9 December 1933. On the date last mentioned seven witnesses were examined on behalf of the first party and were cross- examined on behalf of the second party, the petitioners before us. On 11 December 1933 Mr. K.P. Ghose on a consideration of the materials that he had before him decided to issue orders Under Section 144, Criminal P.C. forbidding the second party as also the public generally from holding the hat. It is this order Under Section 144, Criminal P.C., that was issued by Mr. K. P. Ghose against which the present rula is directed.

(3.) One of the grounds on which this rule has been issued relates to the question of jurisdiction of Mr. K.P. Ghose to make the order aforesaid. The question of jurisdiction arises in this way. On the date on which Mr. K.P. Ghose made the order the Sub-divisional Magistrate appears to have returned from his tour and was present at the head-quarters; and the contention put forward on behalf of the petitioners is to the effect that in such circumstances Mr. K.P. Ghose who was only in charge of the current files of the Court of the Sub-divisional Magistrate had no jurisdiction to deal with the case and pass final orders on it. This question has been considered by the Deputy Commissioner to whom an application was made by the petitioners subsequently Under Clause 4, Section 144, Criminal P.C. The learned Deputy Commissioner has disposed of this question in the following words: It was further argued that the learned Deputy Magistrate who passed the order complained of had no jurisdiction to do so. But in my opinion he had jurisdiction inasmuch as ha was dealing with the file of the Sub-divisional Magistrate during the latter's absence on tour. It is true that the Sub-divisional Magistrate returned from tour the morning on which the order was passed, but it was not known that he would attend Court and he did not do so until late.