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Calcutta High Court
Tara Charan Sarkar And Anr. vs Bengal Coal Co. Ltd. And Anr. on 26 August, 1908
Equivalent citations: 4 Ind Cas 354
Bench: Brett, Ryves


1. In this case the Rule was issued calling upon the Deputy Commissioner and the Opposite Party to show cause why the order of the Deputy Commissioner, dated the 20th June 1908, quashing proceedings under Section 145, Criminal Procedure Code, should riot be set aside and why an order should not be passed by this Court directing that the proceedings instituted do continue before the Deputy Magistrate, Babu Manmatha Nath Mukerjee, before whom they were originally instituted on the ground that the order of the Deputy Commissioner appears to have been passed without taking any evidence and, therefore, was passed without jurisdiction.

2. The facts of the case out of which this Rule arose appear to be briefly as follows:

3. The Eastern Coal Company, on the 3rd April, 1908, wrote a letter to the Deputy Commissioner of Manbhoom stating that they had obtained a prospecting coaling lease of Mouzah Hira Khund from one Tara Churn Sarkar on the 22nd February last and that they had commenced to prospect for coal. Subsequently, the Bengal Coal Company Ltd., alleging that they had obtained a lease of the same mouzah on the 2nd April from one Kali Mohan Bhattacharjee, who represented that his father was dead, had stationed peons and chuprasees in the mouzah for the purpose of preventing the Eastern Coal Company from asserting their rights. The Deputy Commissioner in reply wrote a letter, dated the 10th April, 1908, to the agents of the Eastern Coal Company, which, after stating that from the Managing Agent’s letter of the 3rd April it appeared that the other company were in actual physical possession, and after warning the Managing Agents of the Eastern Coal Company to the effect that they would be responsible for any breach of the peace which might occur if they carried out the proposal which they had made in their letter of the 3rd April to go on to the land on the 15th April, concluded by stating that he, the Deputy Commissioner, had given orders to the Police to make an enquiry into the facts and that he would, if necessary, take action under Section 145 of the Code of Criminal Procedure. The Police seem to have made an enquiry on the spot and a report was submitted on the 20th April which was laid before a Deputy Magistrate and was afterwards made over to Babu Manmatha Nath Mukerjee, another Deputy Magistrate for orders. Babu Manmatha Nath Mukerjee on the basis of that report drew up proceedings under Section 145 of the Code of Criminal Procedure. Afterwards, in consequence of what occurred in the course of those proceedings, that Deputy Magistrate, being of opinion, that his impartiality was questioned, referred the case to the Deputy Commissioner, who thereupon on the 20th June, 1908, took the case on his own file and forthwith quashed the proceedings, arid the order quashing the proceedings is to the following effect: “I will under the circumstances take the case on to my file and quash the present proceedings which in view of admissions made in the letter, dated the 3rd April, 1908, from the Eastern Coal Company Ltd., should not have been taken.”

4. Against this order the present Rule has been obtained. We have read the explanation of the Deputy Commissioner and we have heard the learned Counsel who. has appeared to oppose the Rule and we think that the Rule should be made absolute.

5. It has been contended by the learned Counsel that the Deputy Magistrate who instituted the proceedings had no jurisdiction to do so as there were no materials in the police-report which would justify him in holding that there was a danger of a breach of the peace. We cannot accept this view and after reading the police report we hold that there were circumstances stated in the reports from which the Deputy Magistrate would have been justified in coming to the conclusion that there was danger of a breach of the peace.

6. It has next been contended that the only proceedings which the Deputy Magistrate should have taken to preserve the peace were to bind down the servants of the Eastern Coal Company, who, it is suggested, were clearly and admittedly out of possession and were trying to assert their possession. We are unable to hold that it is clear from the report of the police that the Bengal Coal Company were in actual and rightful possession of the mouzah. The allegations made in the letter of the 3rd April were that the Eastern Coal Company had obtained a lease from a person who had been in peaceful and rightful possession, that under that lease they had commenced to prospect for coal and that they were prevented in the exercise of their legal rights by the acts of the Bengal Coal Company who had placed peons and other servants in the mouzah to obstruct their possession.

7. Lastly it has been contended that the Deputy Commissioner was justified in law in quashing the proceedings under the provisions of Sub-section (5) of Section 145 of the Code of Criminal Procedure. The sub-section runs as follows: “Nothing in this section shall preclude any party so required to attend from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be ‘stayed, but subject to such cancellation the order of the Magistrate under Sub-section (1) shall be final.”

8. No doubt if we were satisfied that the Deputy Commissioner had passed his order on the 20th June on a full consideration of all the facts and after hearing the objections, if any, of the parties, we should not have been prepared to interfere with his order quashing the proceedings. So far, however, as we can judge from the terms of the order itself and the materials on the record before us, the order was passed entirely on the interpretation which the Deputy Commissioner had placed on the terms of the letter of the 3rd April which he treated as an admission on the part of the Eastern Coal Company that the opposite party were in actual possession of the mouzah in question. This interpretation appears to have been arrived at and acted upon in spite of the protests of the Eastern Coal Company that their letter did not admit of such interpretation and that they never intended to make any such admission, and without giving them an opportunity of supporting their allegations that they had not made such admission.

9. In these circumstances we hold that the Deputy Commissioner had no jurisdiction under Sub-section (5) of Section 145 of the Code of Criminal Procedure to summarily quash the proceedings and we think that after the proceedings which had been initiated by the Deputy Magistrate, the parties were entitled to be heard in support of their written statements unless other facts had been brought to the notice of the Deputy Commissioner which were sufficient to satisfy him that no dispute likely to cause a breach of the peace existed. So far as we are able to judge from the order of the Deputy Commissioner and the circumstances under which it was passed, no such facts were brought before him beyond the letter, on which, the, Eastern Coal Company alleged he had placed an incorrect interpretation.

10. We, therefore, direct that the Rule be made absolute and the order of the Deputy Commissioner passed on the 20th June, 1908, quashing the proceedings under Section 145 of the Code of Criminal Procedure, be set aside and the proceedings be revived.

11. It is, in our opinion, undesirable that the case should go back for hearing to the Deputy Commissioner and we, therefore, direct that the case be transferred for hearing to the Deputy Magistrate at Asansole.

12. An application has been made to this Court on behalf of the Bengal Coal Company Ltd., stating that in addition to the facts set out in the order of the Deputy Commissioner other arguments were advanced before him to support their contention that the proceedings under Section 145 of the Criminal Procedure Code should be quashed; and we are asked in sending the case back to direct that the Magistrate before whom the proceedings are taken, do consider those arguments. We cannot pass any order directing the Magistrate to consider any special arguments; but we have no doubt that the Magistrate to whom the proceedings are now sent will consider and give due effect to any arguments which may be advanced on behalf of both parties.

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