Damodur Biddyadhur Mohapatro And … vs Syamanund Dey on 27 May, 1881

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Calcutta High Court
Damodur Biddyadhur Mohapatro And … vs Syamanund Dey on 27 May, 1881
Equivalent citations: (1881) ILR 7 Cal 385
Author: Hitter
Bench: Mitter, Maclean


Hitter, J.

1. In a proceeding under Section 530 of the Criminal Procedure Code between the petitioner and the oppose party regarding the possession of 1,100 mans of jnlpai lands, the Deputy Magistrate of Balasore, on the 14th February last, confirmed the opposite(sic) party m possession. The record shows that no preliminary, proceeding, stating the grounds upon which the Magistrate was satisfied that a dispute likely to induce a breach of the peace existed, was recorded. Probably on this ground, at the final hearing, objection was taken to the jurisdiction of the Magistrate, and he deals with this question in the final judgment.

2. One of the grounds upon which this rule was obtained was, that the Magistrate having omitted to record the preliminary proceeding referred to above, the whole proceeding was ultra vires, and therefore should be set aside. It has been contended on behalf of the opposite party that, as the final judgment shows that the Magistrate was satisfied of a dispute likely to induce a breach of the peace existing, the mere omission to record a preliminary proceeding, as is required by the 2nd para, of Section 530, is an immaterial irregularity, which would not warrant this Court, under Section 283 No finding or sentence passed by a Court of competent jurisdiction shall be reversed or altered on appeal on account of any error or defect, either in the charge or in the proceedings on or before trial, or on account of the improper admission or rejection of any evidence, or by any misdirection in any charge to a jury, unless such error or defect has occasioned a failure of justice, either by affecting the due conduct of the prosecution, or by prejudicing the prisoner in his defence of the Criminal Procedure Code, to quash the proceedings of the lower Court. On the other hand, it was broadly contended, that the omission to record this proceeding is, under all. circumstances, a fatal error which would justify this Court in setting aside the proceeding, the provisions of Section 283 notwithstanding. The decision cited before us, Sheikh Munglo v. Durga Narain Nag (25 W. R., Cr., 74), certainly supports this contention. But there is a decision, Gour Mohun Majee v. Doollubh Majee (22 W. R., Cr., 81), which rules the contrary.

3. Whether the one or the other contention is correct, it is clear to us, upon the authority of the cases cited below, that a Magistrate would have no jurisdiction under Section 530 unless he was satisfied that there exists a dispute concerning land, and which dispute is likely to induce a breach of the peace,- i.e., there must be a reasonable apprehension that a disturbance of the peace is likely to occur rendering it necessary for the Magistrate to take immediate action under Section 530 to prevent the apprehended breach of the peace-Harvey v. Brice (4 W. R., Cr., 26), Dewan Elahee Newoz Khan v. Suburunnissa (5 W. R., Cr., 14), Mussamut Anundee Kooer v. Ranee Soonaet Kooer (9 W. R., Cr., 64), Kashi Kishor Roy v. Tarinee Kant Lahori (3 B. L. R., Cr., 76), In re Sutherland (9 B. L. R., 229), Gour Mohun Majee v. Doollubh Majee, (22 W. R., Cr., 81), In re Mussamut Zuhoorun (6 W. R., Cr., 4), Raneegunge Coal Association Limited v. Hem hall Ghatwal (24 W. R., Cr., 17).

4. We have considered the finding of the Deputy Magistrate upon this point in his final judgment, and we are of opinion that it is not sufficient to give him jurisdiction under Section 530. It seems to us that what he says is, that it is probable that a breach of the peace will occur if a proceeding under Section 530 be not taken. This finding would not give him jurisdiction.

5. We, therefore, set aside his order and make the rule absolute.

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