DEBENDRA KUMAR DAS Vs. SATISH CHANDRA DAS

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Lower Assam Districts recommending that a certain order passed by the trial Magistrate under Section 147, Cr.PC should be set. aside. The main ground for recommending Setting aside the order is that proper procedure had not been followed by the learned Magistrate in the matter of drawing up the proceeding under Section 147, Cr.PC and in the matter of issue of notice to the parties concerned as provided under Section 147(1).

(2.) THE facts relating to this case come within a very short compass. One Satish Chandra Das (first party) purchased some lands covered by dag No. 242 and has been living there for about seven years past and has been using a path over the common boundary of dags Nos. 243 and 244 which belonged to Debendra Kumar Das and, others (second party) as an outlet to the municipal road.

(3.) MR . P. Chaudhuri appearing on behalf of the second party in support of the reference contended (1) that the drawing up of the proceeding itself was illegal, since there was no material on record to prove that there was any likelihood of the breach of the peace as is the first condition for drawing up a proceeding under Section 147, Cr. P. C (2) the procedure as prescribed under Section 147 (1), Cr.PC was not followed inasmuch as parties were not asked to show cause, and (3) there was no finding to the effect as is required, under proviso to Section 147, Cr.PC that the first party had exercised the rights within three months next before the institution of the enquiry.