ABDUR RAHMAN BHUIA Vs. DINESH HALDAR

JUDGEMENT

(1.) In this case a rule has been issued on two grounds: (1) that Clause 5 Section 145, Criminal P.C., has no application at that stage of the proceeding when both parties had filed their written statements and the learned Magistrate was enquiring into the question of possession ; (2) that the order complained of was illegal and without jurisdiction having been made behind the back of the petitioners and without giving them any opportunity of being heard and adducing their evidence.

(2.) The Magistrate after starting proceedings under Section 145, dropped them subsequently as it appeared to him from police report that likelihood of the breach of the peace no longer existed.

(3.) As regards the first ground it is argued that Cl (5) to Section 145, applies only to the stage of the proceeding before written statements are filed by parties and that, after they have been put in the Magistrate has no jurisdiction to stay his hand but that he is bound in law to decide the case on the question of possession. This ground is apparently suggested by the decision of this Court in Manindra Chandra Nandi V/s. Baroda Kanto Chowdhury [1903] 30 Cal. 112 where after a statement of the facts in the case it was casually remarked that when the Magistrate passed his final order dropping the proceedings no written statement had been filed by either party. That fact, however, did not influence the decision in that case. One would have thought that after the point raised in the case was settled by Manindra Nandi's case [1903] 30 Cal. 112 there was hardly anything left to be argued. But the learned Counsel for the petitioner says that the wording of Sub-section (5) lends support to the idea that a party is entitled to show that no dispute likely to cause breach of the peace exists only before he had filed his written statement. It is difficult to read that meaning into the sub-section which comes as a separate clause after all the other clauses dealing with the procedure to be followed by a Magistrate after starting proceedings are inserted. By this clause a right is given to any party interested in the dispute to show that a likelihood of the breach of the peace does not exist at any particular time and that if it is so, the Magistrate should cancel the order issued by him under Sub-section (1).