Nittyanund Roy Bahadur And Others 1St Party v. Paresh Nath Sen

1. This case arises out of a proceeding under sec. 145, Criminal Procedure Code. This proceeding was instituted on the 6th July last by an order made under sec. 145 (1) which commenced thus;

“Whereas it appears from a local enquiry held by me on the 27th June 1904 that, a dispute likely to cause a breach of the peace exists, “etc.”

2. It has been contended that this order is bad on the ground that the Magistrate has not set out in the order itself the grouuds upon which he was satisfied that a breach of the peace was likely and upon that ground a rule was granted to show cause why the final order made in the proceedings should not be set aside.

3. The section provides that the Magistrate may take action when he is satisfied either from a police report or other information that a dispute likely to cause a breach of the peace exists concerning land, etc But it also directs that he must state grounds of his being so satisfied.

4. In the present case it appears that the Magistrate held a local inquiry but there is no record, as far as we can ascertain, of the information obtained by him in the course of that inquiry. Even where a Magistrate acts upon a police-report or upon other information, he is still bound to state the grounds upon which he is satisfied that there is a likelihood of a breach of the peace. As authority for that proposition it is sufficient to refer to the following cases: The Queen-Empress v. Gobind Chandra Das (1), Dhanpat Sing v. Chatierput Sing (2), Mahesh Sowar v. Narain Bag (3) and Jago Mohun Lal v. Ham Kumar Gope (4).

5. Therefore, as the Magistrate has omitted in the initiatory order to state the grounds of his being satisfied as to the likelihood of a breach of the peace in the present case, we think the final order directing one of the parties to be retained in possession must be set aside for it does not appear that the case is one which comes within the section and accordingly he had no jurisdiction to make it. In a case initiated upon a police report or other information which has been reduced to writing, reference can be made to the materials upon which the Magistrate acted to ascertain whether there were in fact grounds upon which he might have acted but even then it is the duty of the Magistrate to state the grounds upon which he was satisfied that there was a likelihood of a breach of the peace. In the present ease there being no record of the result of the local investigation made by the Magistrate himself there is nothing to which reference can be made.

6. We, therefore, make the rule absolute and direct that the final order of the Magistrate must be set aside. We think it must follow that the order as to costs must also be set aside and we set it aside accordingly.

7. Rule made absolute.