GAURIDAS PRADHAN Vs. STATE OF SIKKIM
LAWS(SIK)-1983-3-1
HIGH COURT OF SIKKIM
Decided on March 24,1983

GAURIDAS PRADHAN Appellant
VERSUS
STATE OF SIKKIM Respondents





Cited Judgements :-

NARESH ALIAS NARAYAN MURLIDHAR KABRA VS. STATE OF MAHARASHTRA [LAWS(BOM)-2000-12-12] [REFERRED TO]


JUDGEMENT

A.M.Bhattacharjee, J. - (1.)This revision must succeed and the impugned order of the learned Magistrate passed under 147 of the Code of Criminal Procedure, 1898 must be quashed.
(2.)It is settled law that the satisfaction of the Magistrate as to the existence of a dispute likely to cause a breach of peace concerning land or water or the boundaries thereof or regarding any alleged right to user of such land or water is the sole foundation of the jurisdiction to proceed under section 145 or section of 147 Chapter XII of the Code of 1898, which is still the Code operating in Sikkim. Section 532 of the Code of 1872, corresponding to section 147 of the Code of 1898, did not contain any reference to any likelihood of breach of peace, as the present section 147 does, but provided that the Magistrate could proceed there under, if a dispute arise concerning the right of any land or water, or any right of way,T whether or not there was any likelihood of breach of peace. But it was nevertheless settled, as would appear from the old Calcutta Division Bench decision delivered by Phear, J. in Rosik Lall Nundi v. Karlik Shaut, that the jurisdiction which is given to the Magistrate by this section is a jurisdiction which is intended for the purpose of preserving the public peace and that the object of the section is not to prevent the mischief or injury which may accrue by reason of the disturbance or assertion of the right to the persons who are disputing about it A fortiori, therefore, there can be no scope for any doubt that under section 147 or section 145 of the Code of 1898, which expressly postulates the existence of a dispute likely to cause a breach of the peace satisfaction all to the existence of such a dispute alone can vest the Magistrate with jurisdiction to proceed there under. Even though no citation should be necessary, reference may be made to the decision of the Supreme Court in Bhinka v. Charan Singh, where it has been observed (at 966) with reference to section 145 of the Code that the foundation of his jurisdiction is an apprehension of the breach of the peace and the observation of the Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani, to the effect that these orders are merely police orders made to prevent breaches of the peace has been quoted with approval.
(3.)But though there has been no dispute during this long period of more than a century that the satisfaction of the Magistrate as to the apprehend on of the breach of peace is a sine qua non for the exercise of the jurisdiction under Chapter XII of the Code or under the corresponding provisions of the preceding Code there was difference of opinion among the different High Courts as to whether such an apprehension must also continue to exist at the time of the passing of the final order. This, however, has now-been set at rest by the Supreme Court in R. H. Bhutani v. Mani. J. Desai where Shelat, J., speaking for the three Judge Bench, has ruled (at 1447) that it is not necessary that at the time of passing the final order, the apprehension of breach of peace should continue or exist. If there is such an apprehension of breach of peace as to justify a Magistrate to invoke the jurisdiction under Chapter XII of the Code and the Magistrate, on being to satisfied, proceeds there under, it is not necessary that he must go on entertaining and/or recording such apprehension at all stages of the proceedings and his final order cannot be assailed on the ground that at the time of the passing thereof no such apprehension existed or has been recorded. Therefore, the impugned order in this case, even in spite of its absolute silence as to the existence or the continued existence of any such apprehension, is not assailable on that score.


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