DINDAYAL MOZUMDAR Vs. EMPEROR

JUDGEMENT

(1.) This is a case of the exercise of the preventive jurisdiction of a Magistrate under Section 107 of the Criminal P. C.. The petitioners have been directed by the Subdivisional Magistrate of Serajgunge to enter into bonds for Rs. 1,000 each and to furnish two sureties, each for the same amount, to keep the peace for one year. The District Magistrate of Pabna has affirmed the order of the Subdivisional Magistrate.

(2.) The petitioners are servants of the zemindar of Jhikra, an important jute centre in the Serajgunge subdivision. Jhikra is on the Karatia river and during the jute season an extensive trade is carried on there on the bank of the river. The zemindar claims to be the proprietor of the foreshore, and Jhikra with the foreshore is alleged to be in his khas possession. The traders who come to the place with jute have no permanent interest in the land, and the zemindar claims from them certain cesses, for the use of the land and the foreshore, under the heads of khuntagari, samati and dalali. The traders deny the right of the zemindar to levy such cesses, and, they have combined not to pay the same. Interference with the local jute trade must be a necessary consequence of the claim on one side and its denial toy the other, and if both sides persist, a breach of the peace is not unlikely.

(3.) But the preventive jurisdiction of a Magistrate must be exercised with caution. Where its exercise may lead to the infringement of an undoubted civil right, where an obligation which the law of the country imposes becomes incapable of being enforced owing to the exercise of such a jurisdiction, and where the breach of the peace apprehended by the Magistrate is a likely result of the enforcement of his legal right by a party in a legal way and the illegal denial of the. corresponding, obligation by the other party, the Magistrate should not bind down the party who has the legal right in him. In a case involving the question of possession of land, a finding as to present possession may be sufficient. But, in most other eases, if there are doubts as to the respective rights and obligations, both parties may be bound down until the rights and obligations are determined by a proper tribunal. To bind down one and not the other party in such a case encourages the infraction of legal rights under cover of legal authority, a state of things which ought to be avoided. If the Magistrate bind down both parties, his order would not be detrimental to either. Where, however, no doubt exists, the party in the wrong should be bound clown and prevented front illegally exercising an alleged claim, or, in other words, the party who has clearly the legal right should be allowed to exercise such right without opposition, the other party being bound down.