Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Dalmir Puri vs Khodadad Khan on 10 June, 1909
Equivalent citations: (1909) ILR 36 Cal 923
Author: C A Ryves
Bench: Casparsz, Ryves


Caspersz and Ryves, JJ.

1. This is a Rule calling upon the District Magistrate and on the opposite party to show cause why the order of the Deputy Magistrate, dated the 19th March 1909, directing the police to see that the bund is removed, should not be set aside on the ground that the Deputy Magistrate had no jurisdiction to make an order, directing the bund to be removed by the police, within the purview of Section 147 of the Criminal Procedure Code.

2. We have heard the learned vakil showing cause against the Rule and the learned Counsel in support of it. It appears that, on the 23rd December 1908, the Deputy Magistrate passed an order in the following terms: “I, therefore, order that the bund, which is an obstruction, should be removed, and order that the second party (the petitioner) should not erect any obstruction until they obtain the decision of a competent Court adjudging them entitled to do such a thing. The first party (the opposite party in this Rule) should deposit Rs. 25 for the cost of removing the obstruction, which will be done under the supervision of the police.” On the 11th of January 1909, the petitioner obtained a temporary injunction from the officiating Subordinate Judge of Monghyr restraining the defendants (the first party) from demolishing the embankment in question, and, on the 1st March 1909, that injunction was continued until further orders. The Subordinate Judge observed: the defendants might move again when danger to their property would be imminent, and the Court might then pass necessary orders after local investigation, if necessary.” A copy of this order was forwarded to the Deputy Magistrate for his information. The Deputy Magistrate, thinking that the injunction could act against the first party only and not against the Criminal Court, and being of opinion that it was imperatively necessary that the bund should be removed before the rains set in, proceeded to direct the police to see the bund removed.

3. There is therefore, unfortunately, a conflict between the Civil and Criminal Courts in this respect. We, however, do not propose to travel beyond the scope of our Rule. We confine ourselves to decide whether the order of the Deputy-Magistrate; dated the 19th March 1909, directing the police to see that the bund is removed, was or was not passed without jurisdiction.

4. The learned vakil for the opposite party relies on the case of Pasupati Nath Bose v. Nando Lal Bose (1900) 5 C.W.N. 67, where the learned Judges held that, under Section 147 of the Criminal Procedure Code, the Magistrate is competent to direct that the obstruction be removed. This case was followed in Lalit Chandra Neogi v. Tarini Persad Gupta (1901) 5 C.W.N. 335. These cases, however, deal with directions made by a Magistrate against parties to the proceedings, and they are not authorities for the order passed on the 19th March in the present case, some seven weeks after the original order of the 23rd December 1908 disposing of the case.

5. We do not find in Section 147 of the Criminal Procedure Code any indication that the Legislature intended the Magistrate to carry out an order under the section through the agency of the police. The section clearly contemplates orders directed to the persons who are parties to the dispute. In this view of the matter, we must discharge the order of the Deputy Magistrate, dated the 19th March 1909, and make this Rule absolute.

6. We may add that if the Magistrate is of opinion that the public peace will be disturbed in connection with this embankment, it will be open to him to bind down one or both of the parties under Section 107 of the Criminal Procedure Code.

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