AMAR KRISHNA SAHA Vs. BIPRA CHARAN DEY AND ANR.

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge of Tripura under Section 438, Cr.P.C. recommending that the order of the learned Magistrate dated 5.9.1962 is illegal, without Jurisdiction and has occasioned failure of Justice and, as such, should be set aside.

(2.) THE facts giving rise to the order of the learned Magistrate are that on 27.7.62, the opposite parties named Bipra Charan Dey and Chinta Haran Dey representing themselves as first party flied an application before the S.D.M., Agartala, naming petitioners Amar Krishna Saha and 3 other persons Prafulla Kr. Ghosh, Rabindra Chandra Ghosh and Bepin Chandra Nama as second party stating that the second party had put a fencing to the north of a 'Gopat' along which the first party and other members of the public of the village used to pass with ploughs, cattle etc., from time immemorial. In the said petition the first party further stated that by reason of the second party putting the fencing the first party had been obstructed from going to the land to the west of the said 'Gopat' with plough and cattle for the purpose of ploughing and prayed for action being taken under Section 133, Cri.P.C. for removal of the obstruction. On this petition, the learned S.D.M. passed an order for inquiry and report by O.C., Kotwali P.S.

(3.) AFTER hearing counsel on both sides, I am of opinion that the order of the Magistrate is illegal and cannot therefore be maintained. Section 142, Cri.P.C. reads as follows: