DIGENDRA BEHARY ROY Vs. JANAKI NATH ROY

JUDGEMENT

(1.) These two Rules relate to two orders one of which is dated the 9 of January, 1929, and the other dated, the 10 of January, 1929, relating to a considerable area of char lands. These lands became the subject-matter of proceedings under Section 145 of the Code of Criminal Procedure some months previously. The proceedings were drawn up about the beginning of October and at the time of the proceedings being initiated an attachment order was, made against the lands. Various steps were taken in those proceedings up to the beginning of January 1929 and on the 9 January the Magistrate passed an order after reviewing the situation at some length as a result of which he directed that the lands should be released from the attachment made in the Section 145 proceedings and decided to replace those proceedings with others under the Bengal Alluvial Lands Act, 1920 (Bengal Act V of 1920). The way he puts it is this: "The land is released from attachment under Section 145, Criminal Procedure Code. It will be attached under the Alluvial Lands Act tomorrow." On the following day, proceedings under the Bengal Alluvial Lands Act were instituted and an attachment was made.

(2.) The grounds which have been argued on the present Rules are that the order of the Magistrate staying proceedings under Section 145 and removing the attachment is an illegal order which he had no power to make and which is not warranted by any of the pro visions of Section 145. The contention is that under Section 145, Sub-section (5) there is only one method provided by law by which an order under Section 145 cm be cancelled and that id where any party or any other person interested has shown that in point of fact there is no dispute which exists arid in such a rasp, as the section says, the Magistrate shall cancel his said order and shall stay all further proceedings but subject to such cancellation the order of the Magistrate under Sub-section (1) shall be final. Reference has been made to the case of Tara Charan Sarkar V/s. Bergal Coal Co. Ltd. 4 Ind. Cas. 354 : 13 C.W.N. 125 : 10 Cr. L.J. 560, where the question was whether under certain circumstances proceedings under Section 145 could be quashed and it was held that the Magistrate could only quash the proceedings in accordance with the provisions of Sub-section (5) of Section 145 on facts being brought to his notice which were sufficient to satisfy him that no dispute likely to cause a breach of the peace existed. Another case to the same effect, namely, the case of Ranada Ranjan V/s. Bharat Chandra 62 Ind. Cas. 180 : 25 C.W.N. 215 : 33 C.L.J. 69 : 22 Cr. L.J. 484, was referred to. But the question raised in that case is entirely different to that which arises in the present case. There the question concerned the procedure as to the correct method of disposal of the proceedings under Section 145 where the question arises in those proceedings themselves. There was no question, as it is here, of the method of disposal of the proceedings in a case where as in the present the alternative method of procedure has been laid down by another Statute. At the time of the cases to which we have just referred the Bengal Alluvial Lands Act, 1920 had not yet been passed. It is, therefore, necessary to decide the present case upon a consideration of the provisions of that Statute. In the preamble of that Act it is stated that "previous sanction of the Governor General has been obtained under Section 79, Sub-section (2) of the Government of India Act, 1915" and the Statute is directed towards making provisions to prevent disputes with regard to possession of alluvial or derelict lands in Bengal. Section 3 of the Act confers power on the Collector to attach lands of this nature and provides a procedure which is in some way analogous to the procedure already existing under Section 145. The Collector has power to make any attachment of alluvial lands and then to refer the matter to a Civil Court, besides the power of giving certain directions as to costs. Section 10 of the Act is an important one for our present purposes. It provides that when the Collector has attached any alluvial land under Section 3 no proceedings under Section 145 of the Code of Criminal Procedure, 1898, shall be instituted in any Court in respect of the same land or of any part thereof and that any such proceedings already commenced and pending in any such Court shall be stayed. It has been contended that that section is intended to 8pply to the proceedings under Section 145 so far as their institution or carrying on is concerned and not to the attachment order which may be made under Section 145, and that once an attachment order has been made in a proceeding under Section 145, Section 10 of the Bengal Alluvial Lands Act of 1920 confers no right upon the Collector to make a further attachment under the powers under that Act. The answer to that contention, we think, is that it introduces a limitation upon the general words in the section itself which is not to be found there. Moreover, it is to be remembered that in most, if not all of the cases which are instituted under Section 145 of the Criminal P. C. this order of attachment is commonly made at the time of the institution of the proceedings. If the contention were sound it would result in nullifying the provisions of the Bengal Alluvial Lands Act of 1920. The position, in our opinion, is that the provisions of Section 10 are certainly wide enough to apply to all proceedings, including an attachment that may have been had under Section 145. The result, therefore, is as regards these two orders of the 9 and 10 January that assuming that the order of the 9 of January was not strictly correct in that that the proceeding under the Bengal Alluvial Lands Act should have been instituted first it is not a matter of substance In the present case because if the Order were wrong and if the proceeding under Section 145 had been allowed to continue and a proceeding had then been instituted under the Bengal Alluvial Lands Act, the effect of Section 10 of that Act would be to stay the earlier proceedings.

(3.) The Rules are, therefore, discharged. Let the record be sent down at once a Rules discharged.