BHUPEN GUHA Vs. DILIP KUMAR BOSE
LAWS(CAL)-1970-9-33
HIGH COURT OF CALCUTTA
Decided on September 16,1970

BHUPEN GUHA Appellant
VERSUS
DILIP KUMAR BOSE Respondents

JUDGEMENT

- (1.) THIS Rule is at the instance of the second-party petitioner against two orders dated the 10th June, 1970, and 24th June, 1970, passed by Sri K. C. Mallick, Magistrate, 1st Class, Sealdah, district 24-Parganas in Miscellaneous petition No. 409 of 1970/- M. 150/70 under section 142 of the Code of Criminal Procedure.
(2.) THE facts leading on to the Rule are short and simple. The first-party, dilip Kumar Bose, is a resident of 1, Jugipara Lane, calcutta. The second party, Bhupen Guha, is the owner of two small factories carried on under the name and style, Guha and Company at premises No. 236/1, Vivekananda Road and. 57/6, Raja Dinendra Street, for some years. An application under section 133 criminal Procedure Code was filed by the first-party before the learned police Magistrate at Sealdah against the second-party as also his wife, Sm chhayarani Guha. The learned Police magistrate thereupon by his order dated the 13th May, 1970, directed the officer-in-charge, beliaghata Police Station to enquire and report by the 27th May, 1970, and further directed that in the meanwhile no breach of the peace may take place. The report ultimately arrived and on a perusal thereof, the learned police Magistrate by his order dated the 28th May, 1970, drew up proceedings against the two members of the second-party under section 133 Cr. P. C. directing them to desist from carrying on the trade or regulate it so that no noise is caused to the discomfort of the residents or to show cause before Sri k. C. Mallick, Magistrate, 1st Class, sealdah by the 20th June, 1970. Notices were accordingly issued. On the 10th june, 1970, the learned Magistrate went through the application filed by the first-party as also a mass petition filed by one Lakshmi Narayan Chatterjee and others and also certain affidavits filed on behalf of different persons and after hearing the lawyer of the applicant and going through the connected papers, the learned Magistrate was satisfied that there was a chance of the adjoining houses being cracked and damaged due to the hammering done by the members of the second-party in their factory and in that view he considered that immediate action under section 142 Criminal Procedure Code was necessary to prevent the imminent danger and accordingly issued an order of injunction against the two members of the second-party asking them to stop the functioning of the factory forthwith at the aforesaid two premises wherein they have been carrying on the business. Cause was directed to be shown by them on the date fixed. A prayer thereafter was made on behalf of the second-party for vacating the order dated the 10th June, 1970, and on the 15th June, 1970, the learned Magistrate heard both the sides and ultimately by his order dated the 24th june, 1970, he rejected the application filed on behalf of the second-party far vacating the order of injunction passed under section 142 Cr. P. C. This order has been impugned and forms the subject-matter of the present Rule.
(3.) MR. Jahar Lal Roy, Advocate (with Mr. Ram Chandra Srivastava advocate) appearing in support of the rule on behalf of the second-party petitioner, bhupen Guha, has made a twofold submission. Mr. Roy has contended in the first instance that there has been a non-conformance to the mandatory provision of section 142 Criminal procedure Code vitiating the resultant proceedings inasmuch as, amongst others the learned Magistrate who passed the order under section 142 Criminal procedure Code is not the magistrate who made the order under section 133 of the Code. Mr. Roy contended in the second place that the order dated the 10th June, 1970, is dehors the conditional order passed by the learned magistrate under section 133 Cr. P. C. on the 28th May, 1970, and as such is bad and repugnant. Mr. Sudhir Gopal poddar, Advocate (with Messrs. Kali chanran Sen and Sudhir Kumar Sen choudhury, Advocates), appearing on behalf of the first party-opposite party, joined issue. Mr. Poddar contended in the first instance that the words "a magistrate making an order" used in section 142, Criminal Procedure Code were not confined to the Magistrate making the order under section 133 of the Code but to any Magistrate as, otherwise the intention of the legislature would be unnecessarily circumscribed. Mr. Poddar further submitted that some meaning and effect must be given to the provision of the statute as otherwise this dominant intention behind the same cannot be given effect to and the legislature abhors redundancy. As to the second contention of mr. Roy, Mr. Poddar submitted that the objection taken by him is more technical than real because there is precious little difference between the conditional order passed on the 28th may, 1970 and the order of injunction passed under section 142, Criminal procedure Code, on the 10th June, 1970, inasmuch as the latter is included within the former. Mr. J. M. Banerjee, advocate, appearing on behalf of the state opposed the Rule, Mr. Banerjee contended that the objections taken by mr. Roy to the maintainability of the proceeding are unwarranted and untenable and at this stage of the proceedings the same should not be quashed for a purported non-conformance to the provision of section 142 Criminal Procedure code. In course of the argument it appeared that there is no direct case on the point as to whether the words "a Magistrate making an order" used in section 142 (1) Criminal Procedure Code mean "the Magistrate" who had passed the original order under section 133, Criminal Procedure Code. Mr. J. M. Banerjee, Advocate, appearing on behalf of the State submitted than the points appears to be one of first impression and Mr. Poddar also agreed that it was so. Mr. Roy appearing in support of the Rule also could not cite any decision on the point but merely pinpointed the provisions of section 142, Criminal Procedure Code, in support of his submission made in this behalf. In view of the importance of the points raised appearing to be one of first impression, the Court requested mr. Nalin Chandra Banerjee, a senior member of the Bar, to assist the Court as Amices Curiae and Mr. Banerjee was good enough to agree. Mr. Banerjee thereafter made his submission as to the interpretation of section 142 (1)Criminal Procedure Code, and the same would be considered in their proper context.;


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