Patna High Court
Kumar Fateh Singh And Anr. vs State Of Bihar And Anr. on 16 August, 1971
Equivalent citations: 1972CRILJ1655
ORDER J. Narain, J.
1. By this application under Section 561-A of the Code of Criminal Procedure (hereinafter to be referred to as 'the Code') a prayer has been made on behalf of the petitioners to quash the proceeding under Section 144 of the Code in which the impugned orders have been passed against the petitioners.
2. The Karamchari of Halka No. 6 of Anchal Baroon sent a report to the Anchal Adhikari on the 18th December 1969 saving that on the 24th October 1969 petitioner No. 1. Kumar Fateh Sineh. with his men had forcibly cultivated plots Nos. 124. 130. 600 601. 602. 603. 936. 127. 588 584 etc, appertaining to khata No. 38 in village Nanari-Khurd within Baroon Police station in the district of Gaya and suggested that necessary action should be taken against them. The Circle Officer through whom this report seems to have been routed to the Anchal Adhikari and the Anchal Adhikari Baroon forwarding this to the Sub-divisional Magistrate, Aurangabad reiterated the suggestion that necessary legal action should be taken against Kumar Fateh Singh and others. On this the Sub-Divisional Magistrate on the 5th January. 1970 initiated a proceeding under Section 144 of the Code against the petitioners.
3. The State was made the first party and the petitioners were made the second party in the proceeding. The petitioners filed their show cause stating how the lands had been coming on in their possession. They claimed possession since 1943, after having taken settlement from Rani Saida Khatoon. The first party contended that the lands were Gair-mazarua-malik and had vested in the State Government under the Bihar Land Reforms Act and were settled each year as Sajrat. On the 17th April 1970 the State first party filed a petition praying that standing crops had become ripe and they should be harvested else they would be damaged. Accordingly a prayer was made that a receiver be appointed The Sub-Divisional Magistrate adjourned the case to the next date and on the 18h April 1970 passed an order to the effect that since there was still apprehension of a breach of the peace and some rabbi crop was standing fresh notices under Section 144 of the Code be issued.
4. The petitioners contended that actually an auction was held of the standing crop despite protests made by them and the crop was sold on 22-4-1970 for a petty sum of Rs. 600/- although they were worth Rs. 6,000/- in value. Regard being had to the circumstance in which the proceeding under Section 144 of the Code was initially started and a successive order was passed and the crop was auction sold the petitioners contend that the entire proceeding is vitiated and is fit to be quashed.
5. It has been argued for the petitioners that according to the materials available before the Sub-divisional Magistrate there was no warrant for a proceeding under Section 144 of the Code. In this connection my attention was invited to the reports of the Karamchari Circle Inspector and the Anchal Adhikari where there is no indication at all of there being any immediate apprehension of the breach of the peace or anything of that kind. My attention has also been invited to the fact that the Sub-divisional Magistrate had himself visited the locality on the 29th December 1969 and had found peaceful possession of the petitioners.
6. In order to give jurisdiction to the Magistrate to proceed under Section 144 of the Code what is necessary is that "there should be sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable." Manifestly nothing was to be prevented immediately nor any speedy remedy was desirable. The different reports do not indicate any such contingency.
7. The circumstances in which a proceeding under Section 144 of the Code should be initiated has been dealt with in a series of decisions. One of the-earliest cases is that of Akal Mahto v. Mahabir Mahton AIR 1924 Pat 145 24 Cri LJ 947. It is laid down there that "Section 144 is applicable only to temporary orders in urgent cases of nuisance or apprehended danger: it is not applicable in cases where there is a dispute as to land as to the settlement of which Section 145 provides the proper remedy".
8. In the case of Sairu Seikh v. Shyamlal Sardar it was said by the Calcutta High Court that "Sections 144 and 145 deal with possession and possession only, and they are intended to protect persons in possession and to prevent breaches of the peace. The Magistrate acting under these sections has nothing whatsoever to do with the title to the land." It has further been laid down that "where the petitioners were in possession and they had sown the paddy crop which was about ready for harvesting. Magistrate cannot issue an injunction against them restraining them from entering upon the land. If they were in wrongful possession then the opposite party had other remedies. His remedy was not by way of an injunction under Section 144. That form of injunction could only be issued to protect existing possession and not to oust a person in possession from possession."
9. Learned Counsel for the opposite party has however referred to the case of R. H. Bhutan v. Miss Mani J. Desai wherein their Lordships have laid down the materials on which a proceeding under Section 145 of the Code should be initiated. They have laid down that "the satisfaction under Sub-section (1) of Section 145 is of the magistrate. The question whether on the materials before him. he should initiate proceedings or not is therefore in his discretion which no doubt has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can therefore, be laid down, as to the sufficiency of material for his satisfaction". It was argued that the same principle should apply in the case of a proceeding under Section 144 of the Code also and that it is the satisfaction of the magistrate which is of consequence and in the present case the order-sheet shows that the magistrate felt satisfied that the proceeding was necessary. The point however, to be noticed is that their Lordships have laid down that the magistrate has to exercise his discretion "in accordance with the well recognised rules of law in that behalf." What those "well recognised rules of law" are is to be found in the concluding words of Sub-section (1) of Section 144 to which I have made a reference above. The materials on record do not at all show that there was any necessity for an immediate prevention or speedy remedy. Therefore, there was no warrant for the proceeding under Section 144 of the Code and the ruling relied upon by the State cannot be of any avail to them.
10. The next point that has been argued on behalf of the petitioners is that regard being had to the manner in which the crop had been harvested and auctioned and insufficient amount collected, clearly amounts to their dispossession and this could not be done in a proceeding under Section 144 of the Code. There is substance in this contention vide supra
11. For the State it was contended that even if an auction had taken place and the sale proceeds collected the petitioner should have no grievance as they can take recourse to the provisions of Section 517 of the Code In order to substantiate that provisions of Section 517 are applicable to a proceeding under Section 144 of the Code also reliance was placed on the case of Jamuna Prasad Bhasat v. Ramprit Sah . The petitioners replied that later they will take recourse to provisions of Section 517 of the Code if they are so advised and take the sale proceeds. The moot question however is whether the petitioners could be deprived of their property in a proceeding under Section 144 of the Code and which in law they could not do. The case of Jaumna Prasad Bhagat referred to above is beside the point.
12. It was next argued that the successive orders passed under Section 144 of the Code are illegal: firstly because there was no warrant for the same and secondly because they have no sanction in law. I have referred to the order sheets dated the 17th and 18th of April. 1970. and have shown how when petitions for auction sale of the standing crops and appointment of a receiver were filed on behalf of the State, the matter was adjourned to the next date and on the next date the Sub-divisional Magistrate stated that there was still apprehension of the breach of the peace and issued fresh notices. There was absolutely no material on which it would be said that there still existed apprehension of the breach of the peace. That being so the very foundation of the order was non-existent.
13. Successive orders under Section 144 of the Code have been deprecated in different decisions of this Court as also of other High Courts. Dhavle. J. in the case of F. E. Chrestien v. Carter AIR 1939 Pat 512 40 Cri LJ 895 observed that:
An order passed under Section 144 decides nothing about the respective rights of the parties and may be no more than an interference with private rights required in a temporary emergency. To repeat such an order on the ground of maintaining the status quo is to compel the unsuccessful Party to resort to the Civil Court even though the Criminal Court may have done nothing to look into the rights of the parties and further indirectly to prolong the effect of the original order beyond the period of two months fixed in Sub-section (6) of the Section. Such a use of the section is altogether unwarrantable. It is not open to a Magistrate by passing repeated orders under Section 144 to avoid the decision of a dispute which may be appropriately dealt with under Section 145 or Section 107 Criminal P.C. The power given by Section 144 is essentially an emergent power which has sometimes to be passed in disregard of private rights. An order of that kind cannot possibly be allowed by repetition to spell a more or less permanent interference with private rights.
14. In Taturam Sahu v. The State of Orissa it was laid down that "repeated summary orders under Section 144 in favour of one of the several belligerent parties having conflicting claims to particular right or property would be beyond the scope and object of the section and hence improper".
15. In the present case conflicting claims to the subject of dispute were involved and as such repeated orders under Section 144 of the Code were beyond the scope and object of the section.
16. For the rsasons stated above, clearly the orders passed in the proceeding in question are not sustainable. The point however is whether this Court after the order has spent its force should interfere in the matter. The first order is dated the 5th January 1970 and the second order is dated the 18th April 1970. This application was filed on the 4th May. 1970 by which date the first order had spent is force but the second order had not. By now, this too has spent its force.
17. For the first party it was vehemently argued that the consistent direction of this Court has been that where the order under Section 144 has spent its force this Court should refuse to interfere with the order. This contention finds support from the case of Ram Prasad Sao v. Shankar Prasad Sao . The point to be noticed is that it is not the law that the High Court is to refuse to interfere in all cases where an order under Section 144 of the Code has spent its force. Even the aforesaid decision supra says that "though there are several decisions of this Court wherein it has been held that this Court has power to interfere even if the order has spent its force" but concluded that regard being had to the facts of the case interference was not called for So far as the facts of the present case are concerned. I find that it is a case in which interference is called for. Conflicting rights and claims of the parties were involved and what was done amounted to evading the right decision in a right proceeding.
18. It was laid down in the case of Dewan Singh v. Deo Narain Singh that it was not the "usual practice of the Patna High Court to interfere with an order of the Magistrate under Section 144. Cr. P.C. which has spent its force by lapse of time But where the order affects the future rights of the parties the High Court will interfere if it is illegal even if the order has spent its force. Thus where an order purported to have been passed under Section 144 (4) was without jurisdiction and. if it were not set aside the parties would have been under misapprehension as to their rights to the crops which were standing the order was set aside in revision though it had spent its force".
19. I have found above that this is a case where the order purports to affect the future rights of the parties and I have also found that the order is illegal and that being so this is a fit case where the High Court should interfere with the impugned orders.
20. The result, therefore is that this application is allowed and the orders of the Sub-divisional Magistrate. Aurangabad are quashed.