Patna High Court
Madan Lal vs Fulchand Ram And Ors. on 16 November, 1920
Equivalent citations: 63IND. CAS.621, AIR 1921 PATNA 392
JUDGMENT Jwala Prasad, J.
1. This is an application against the order of the Sub-Divisional Magistrate of Giridih, dated the 5th of October 1920, passed under Section 144 of the Code of Criminal Procedure against the petitioner. The order directs a notice to be served upon the petitioner requiring him "to keep away from the mine, unless he gets an order of possession from a competent Court." The order is an outcome of a dispute between the parties with respect to the possession of certain Mica mines.
2. On the report of the Police, at first the Magistrate issued notice under Section 144 on the second party by his order of the 14th of September 1920, directing him to show cause on the 28th of September 1920. The matter was taken up on the 5th of October, the parties filed certain documents and argued out their respective claims. The Magistrate then discovered that the original order of the 14th of September against the second party was passed under a misapprehension of the report of the Police and that notice under Section 144 of the Code of Criminal Procedure should really issue against the first party petitioners. From the facts placed before the Magistrate he further found that the "dispute" between the parties was "about the possession of Mica mines in village Baharwabank in Gadi Bhandari." After discussing the case and the documents of the parties the Magistrate recorded the following finding:
Hence the truth appears fairly obvious that the second party, who paid Chaukidari tax and has a house in the village, has owned and worked the mines for years, bat five months ago having leased temporarily to work them the first party seized the opportunity to start work. On the return of the second party a danger of a breach of the peace naturally arose.
3. He further held that the first party in occupying these temporarily abandoned mines, were mere trespassers and never acquired legal possession at all. As soon as the second party discovered the trespass, he took measures for ejectment.
4. Upon these findings the Magistrate answered the question raised by him as to "who is to be considered to be in real possession," in favour of the second party. He cancelled the provisional order against the second party and directed a notice to be issued against the first party under Section 144 of the Code of Criminal Procedure, in the terms already adverted to.
5. It is thus clear from the findings recorded by the Magistrate that the first party was not in actual possession of the mines on the date of the order and was, in fast, dispossessed five or six months ago. This is clearly a case to which Section 144 of the Code of Criminal Procedure had no application. The dispute as to the possession of the property in question could only be decided under Section 145 of the Code. The authorities on this point are too numerous to be quoted. I lately discussed the authorities and have laid down the respective scope and application of Sections 144 and 145 of the Code of Criminal Procedure vide Gouri Dutt v. Gobind Singh 58 Ind. Cas. 829 : 1 P.L.T. 44 : 20 Cr.L.J. 829 and Tarapada Bhattacharji v. Emperor 55 Ind. 193 : 1 P.L.T. 72 : 21 Cr.L.J. 241. It is only when the possession is either undisupted or clear beyond. any shadow of doubt that Section 144 of the Code applies. Where, as in the present case, the possession is disputed, Section 144 of the Code has no application, the effective and the proper section is Section 145 of the Code.
6. Again, the order of the Magistrate virtually is one of ejectment in a civil suit. This is beyond the jurisdiction of the Magistrate to do. No doubt, there is a serious dispute between the parties threatening a breach of the peace. The best course for the Magistrate to do was to prevent the breach of the peace by issuing notices upon both the parties under Section 144, instituting proceedings under Section 145, attaching temporarily the subject-matter in dispute under Clause (4) of Section 145 of the Code and finally determining once for all the possession of the parties. If, however, he was not able to determine that any of the parties was in possession within two months next before the date of his order, under Clause (1) of Section 145 of the Code, he could attach the subject-matter in dispute under Section 146 of the Code.
7. Lastly, the temporary order against one of the parties under Section 144 of the Code is not a permanent prevention of the danger to the breach of the peace for its duration is only of two months.
8. For these reasons, I hold that the finding as well as the order of the Magistrate, dated the 5th of October is without jurisdiction, and I have no hesitation in setting it aside.
9. Mr. Dutt took a preliminary objection to the application being heard by this Court. He urged that the application was premature under Clause (4) of Section 144 of the Code, and that the petitioners ought to have gone to the District Magistrate in the first instance. Under that clause, the District Magistrate, or the Magistrate who passed the original order under Section 144 could rescind or alter the order. The petitioner, however, asks to have the order set aside on the ground that the Magistrate had no jurisdiction to make the order under Section 144 of the Code. This question could not, to my mind, be entertained by the District Magistrate, or the Magistrate, who passed the order in question. The petitioner invokes the powers of revision or superintendence of this Court. Such a power, does not exist in the subordinate Court. I am fortified in this view by the decision of Mr. Justice Das in Criminal Revision No. 299 of 1919, decided on the 22nd of September 1919. I adopt, that reasoning of that learned Judge for his holding that Section 144 Clause (4) "was not intended to be exercised as an appellate or re visional power, that is to say, it was not intended to be exercised when the order is challenged as a wrong order, or an order beyond the jurisdiction of the Court, but was intended to be exercised when circumstances arose rendering the continuance of the order necessary or rendering the alteration of the order necessary."
10. I, therefore, overrule the contention of Mr. Dutt and hold that this Court has jurisdiction to set aside the order in question. At the same time. I cannot help noticing that the application in the present case purports to have been made under Section 439 of the Code of Criminal Procedure. Mr. Pal says that this was through oversight and was only a clerical mistake. The application was intended to be both under Section 439 of the Code and under Section 107 of the Government of India Act. That this was the intention, is obvious from the grounds taken for the setting aside of the order. The ground taken in the petition is that the order, "passed was without jurisdiction, inasmuch as the learned Magistrate could not decide the question of possession in a proceeding under Section 144 of the Code of Criminal Procedure, much less could he declare possession in favour of a particular party."
11. The result is that the order of the Magistrate, dated the 5th of October is set aside. I have no doubt that the Magistrate will take prompt action under the law and institute proceedings under Section 145 of the Code, in case there be a danger to the breach of the peace on account of the dispute between the parties as to the possession of the mines in question.