Manipur High Court
Shri K. Suanthang vs The District Magistrate on 29 December, 2021
Author: Ahanthem Bimol Singh
Bench: Ahanthem Bimol Singh
KABORAMBAM
SAPANA CHANU
Digitally signed by
KABORAMBAM SAPANA
CHANU
Date: 2021.12.29 18:40:53
+05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Cril. Petn. No. 43 of 2021
Shri K. Suanthang, aged about 57 years, S/o (L) Kamkhogin of
Convention Road, New Lamka, Churachandpur, Manipur-795128,
President, Paite Tribe Council, General Headquarters, Hiangtam
Lamka, Churachandpur.
... Petitioner.
-Versus -
1. The District Magistrate, Churachandpur, Churachandpur District,
P.P. & P.S. Churachandpur, Manipur-795128
2. The Superintendent of Police, Churachandpur, Churachandpur
District, P.O. & P.S. Churachandpur, Manipur-795128.
........Respondents.
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the petitioner : Mr. N. Ibotombi, Sr. Adv.
For the respondents : Mr. Y. Ashang, PP
Date of Hearing : 09.12.2021
Date of Order : 29.12.2021
ORDER
(CAV) Heard Mr. N. Ibotombi, learned senior counsel appearing for the petitioner and Mr. Y. Ashang, learned PP appearing for the respondents. [2] The present petition had been filed under Section 482 and section 397 of the Cr.P.C. praying for quashing the entire proceeding of Case No. 4/28/2020-DC/CCP/250 of the learned District Magistrate, Churachandpur as well as the order dated 24.10.2021 passed by the learned District Magistrate, Churachandpur in the aforesaid case.
Cril. Petn. No. 43 of 2021 Page 1 [3] The case of the petitioner is that he is the lawfully elected President of Paite Tribe Council, General Heard Quarters, Hiangtam Lamka,
Churachandpur (herein after referred to as PTC/GHQ for short). On 28.09.2019, a meeting of the Central Working Committee, PTC/GHQ was convened and in the said meeting the present petitioner, the Chairman of the Central Working Committee and the General Secretary, PTC/GHQ, who are lawfully elected office bearers of PTC/GHQ, were unlawfully and illegally removed from their official positions and in their place, three persons, viz., Dr. D.K. Mang, K. Paukhansuan and Chinkhanmang Ngaihte, were unlawfully, illegally and forcibly elected as the President, PTC/GHQ, Chairman, CWC, PTC/GHQ and General Secretary of PTC/GHQ respectively. [4] Having been aggrieved, the petitioner filed an original suit being Original (Declaratory) Suit No. 1 of 2019, against the above mentioned three persons and one other in the Court of Civil Judge (Jr. Division), Churachandpur, Manipur claiming for the following reliefs:-
a) A decree declaring that the Plaintiff and his Cabinet are the rightful incumbents of the Offices of President, PTC/GHQ;
Chairman, CWC, PTC/GHQ and General Secretary, PTC/GHQ;
b) A decree of permanent injunction for restraining the defendants and their men from occupying the Offices of President, PTC/GHQ; Chairman, CWC, PTC/GHQ and General Secretary, PTC/GHQ;
And pending the final disposal of the Main Suit to grant Ad Interim Ex-parte Temporary injunction restraining the Defendants Cril. Petn. No. 43 of 2021 Page 2 and their men in any connection with the Suit Property in order to protect the peaceful possession and enjoyment of the Suit Property by the Plaintiff and his cabinet.
c) Direct the Officer-in-Charge of the Churachandpur Police Station to open the door of the Office of the PTC/GHQ, Hiangtam Lamka, Churachandpur and handing over the same to the authority of the Plaintiff;
d) Any other relief or reliefs which the Hon'ble Court may deem fit and proper under Law and Equity, including the cost of the suit. [5] Along with the said Original Suit, the petitioner also filed Judicial Misc. Case No. 75 of 2019 praying for granting an ad interim ex-parte temporary injunction restraining the opposite parties and their men in any connection with the suit property in order to protect the peaceful position and enjoyment of the suit property by the petitioner and his cabinet and to direct the Officer- in-Charge of the Churachandpur Police Station to open the lock of the Office building of PTC/GHQ and to officially hand over the Office building to the petitioner.
[6] The defendants in the said OS No. 1 of 2019 also filed another Judicial Misc. Case No. 79 of 2019 in connection with the said original suit praying for granting an interim injunction order restraining the petitioner and his cabinet and their men/privies from disturbing and threatening the peaceful position and enjoyment of the PTC/GHQ Office and its amenities by the said defendants.
Cril. Petn. No. 43 of 2021 Page 3 The said defendants also filed another Judicial Misc. Case No. 83 of 2019 in connection with the aforesaid Original Suit No. 1 of 2019 praying for granting an interim injunction order restraining the present petitioner, his cabinet and their men, agents/privies from functioning under the banner of PTC/GHQ and also restraining them from holding PTC/GHQ emergency meeting on 29.11.2019.
[7] The said Judicial Misc. Case No. 83 of 2019 was heard by the learned Civil Judge (Jr. Division), Churachandpur and the same was dismissed by an order dated 28.11.2019. Against the said dismissal order, the said defendant filed Civil Appeal No. 2 of 2019 before the learned District Judge, Churachandpur, however, the said Civil Appeal was also dismissed by the learned District Judge, Churachandpur by an order dated 26.02.2020. [8] The above mentioned Judicial Misc. Case No. 75 of 2019 filed by the present petitioner as well as the Judicial Misc. Case No. 79 of 2019 filed by the aforesaid defendants in the Original Suit were jointly heard by the learned Civil Judge (Jr. Division), Churachandpur and by an order dated 21.10.2021 passed by the learned Civil Judge, the Judicial Misc. Case No. 75 of 2019 filed by the present petitioner was allowed and the Judicial Misc. Case No. 79 of 2019 filed by the defendants in the Original Suit was rejected. [9] In the said order the learned Civil Judge held that the present petitioner and his cabinets are the lawfully elected office bearers of PTC/GHQ they shall continue as such till the disposal of the original suit. The learned Civil Judge also directed the OC, Churachandpur Police Station and SDO, Churachandpur to unlock the office of the PTC/GHQ and to hand over the Cril. Petn. No. 43 of 2021 Page 4 same to the Executive Committee members of CWC and PTC/GHQ to be represented by the present petitioner, who shall then hand over the lock and key to the custody of the official care taker of the office. In the said order the learned Civil Judge also directed to forward a copy of the order to the OC, Churachandpur PS and SDO, Churachandpur for their information and compliance.
Against the said order dated 21.10.2021 passed by the learned Civil Judge (Jr. Division), Churachandpur in JMC No. 75 of 2019 and JMC No. 79 of 2019, one of the defendants in the original suit filed Civil Appeal No. 3 of 2021 before the District Judge, Churachandpur. However, the learned District Judge did not passed any stay order in the said appeal. [10] The appellant in Civil Appeal Case No. 3 of 2021, viz., Shri Chinkhanmang Ngaihte, who is one of the defendants in OS No. 1 of 2019, claiming himself as the General Secretary of PTC/GHQ submitted an application dated 23.10.2021 to the District Magistrate, Churachandpur, stating, inter alia, that PTC is divided into 2 (two) groups and there is an internal tussle between the said 2 (two) groups and subsequently the office of the organization was locked by the District Administrative in order to prevent bloodshed since 30.09.2019 and that the order of the Judicial Magistrate Court (Jr. Division), Churachandpur was viral in social network site without any mention of the date of the order of the Court and that even assuming that the order of the Court to be true was also infructuous. On the basis of such statements, a request was made to the District Magistrate, Churachandpur to Cril. Petn. No. 43 of 2021 Page 5 issue prohibitory order to prevent violence and bloodshed until the matter was amicably settled in a Court of proper jurisdiction.
[11] On receiving the said application, a request was made to the SP, Churachandpur to look into the matter and to submit a report at the earliest. Thereafter, the SP, Churachandpur submitted a report dated 24.10.2021 which read as under:-
"Government of Manipur Office of the Superintendent of Police, Churachandpur District Manipur
---
No.:C-9/1(144 Cr.PC)/SP-CCP/2021/3691 Churachandpur, the 24th October, 2021 To, The District Magistrate, Churachandpur District, Manipur.
Subject: Request to take measures for imposing restriction/prohibition under the provisions of 144 Cr.P.C.
Ref: Judicial Misc Case No. 75 of 2019 and Judicial Misc Case No. 79 of 2019 Ref: OS No. 1 of 2019.
Sir, In submitting herewith a report received from Officer-in-Charge, Churachandpur Police Station regarding an order passed by the Hon'ble Court of Civil Judge (Jr. Division), Churachandpur, Manipur dated Nil in c/w Judicial Misc Case No. 75 of 2019 and Judicial Misc Case No. 79 of 2019 Ref: OS no. 1 of 2019, I am to state the following for favour kind perusal and necessary action, please.
That, the Ld. Court of Civil Judge (Jr. Divn), Churachandpur had passed an order dated Nil directing the SDO/CCP and OC/CCP to unlock the office of the Paite Tribe Council (PTC), General HQ, Hiangtam Lamka and hand it over to the Executive Committee Members of CWC and PTC GHQ to be represented by the President, PTC GHQ without any specified timeline.
Consequently, the PTC GHQ led by one group had circulated in its press release published in the local newspapers and social media inviting people to attend the unlocking ceremony. In the meantime, the opposite party had also approached the District Magistrate, Churachandpur to invoke prohibitory orders to prevent the unlocking of the PTC GHQ office, Hiangtam Lamka.
In anticipation of unlocking the PTC General HQ Office, Hiangtam Lamka in accordance with the Hon'ble Court's order at any time, any day, a large numbers of supporters of both groups of the PTC are expected to congregate near the PTC GHQ office, Hiangtam Lamka at any time, any day in the immediate future to support/sabotage the unlocking of the office which is Cril. Petn. No. 43 of 2021 Page 6 likely to cause breakdown of public peace, tranquility and ultimately law and order breakdown.
Moreover, there is no intimation conveyed to the District Police, CCPur from the concerned authorities for unlocking the PTC GHQ Office any time due to certain reasons and the modalities are being worked out.
It is, therefore, submitted that necessary measures may be initiated under the provisions of section 144 Cr.P.C. to prevent unwarranted breakdown of public peace and tranquility.
Yours faithfully, Shivanand Surve, IPS Superintendent of Police, Churachandpur District, Manipur"
[12] On the basis of the report submitted by the SP, Churachandpur, the District Magistrate, Churachandpur in exercise of the power conferred under Section 144 (2) of the Cr.P.C. 1973 passed the impugned order dated 24.10.2021 prohibiting with immediate effect the entry of any person in the Paite Tribe Council Office, Hiangtam Lamka, Near Community Hall, Churachandpur.
[13] Mr. N. Ibotombi, learned senior counsel appearing for the petitioner submitted that the District Magistrate, Churachandpur has knowledge about the existence of the order dated 21.10.2021 passed by the learned Civil Judge (Jr. Division), Churachandpur in JMC No. 75 of 2019 and JMC No. 79 of 2019 in favour of the present petitioner and the direction given to the OC and SDO, Churachandpur to unlock the office of the PTC/GHQ and to hand it over to the present petitioner. However, the District Magistrate, Churachandpur without holding any proper enquiry and without giving any notice to the petitioner and also without any application of mind issued the impugned order only on the basis of the application submitted by one of the defendants in the original suit in a most arbitrary manner and in colorable Cril. Petn. No. 43 of 2021 Page 7 exercise of power. It has also been submitted that the District Magistrate did not give or project any factum pertaining to the urgent and emergent circumstances requiring issuing of the ex-parte prohibitory order and that such action of the District Magistrate amounts to sitting over the orders passed by the Competent Civil Court and accordingly, the impugned order has been made without jurisdiction and therefore, liable to be quashed and set aside. In support of his contentions, the learned senior counsel relied on the order dated 03.04.1979 passed by the Hon'ble Andhra Pradesh High Court in the case of "Bijinibemula Linga Murthy Reddy and Others Vs. Binji Hussain Saheb and Another" reported in (1979) CriLJ 1147 wherein, it has been held at Paragraph 6 & 7 as Under:-
"6. Yet another infirmity from which the order in question suffers according to Sri Ayyapu Reddy is that it was made in flagrant violation of a temporary injunction granted by a civil court. The respondents (petitioners) filed O.S. No. 104 of 1978 in the District Munsif's Court, Nandyal on 18-4-1978 and obtained an ad interim injunction on the same day restraining Binji Hussain Saheb and his men from digging a channel in their field evidently for the purpose of taking water to his lands through that channel and that injunction was later on made absolute on receipt of the report of a Commissioner appointed in the case. It was averred in paragraph 1 of the petition that the Sub-Divisional Magistrate was aware of the injunction granted by the District Munsif, Nandyal as a notice was issued to him on 1-1-1979 and this averment remains uncontroverted since no counter has been filed on behalf of the respondents. When once a competent civil court granted an injunction restraining Hussain Saheb from interfering with the rights of the respondents in relation to their lands, the Sub-divisional Magistrate had no jurisdiction to make the order in contravention or violation of that injunction.
"7. Even assuming for a moment that there was need for some preventive action in the opinion of the Sub-divisional Magistrate he ought not to have made the impugned order without giving an opportunity of being heard to the respondents. Section 144(2) Cr. P.C. provides for an ex parte order being made only in cases of Cril. Petn. No. 43 of 2021 Page 8 emergency or where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed. Ordinarily, therefore, an order should not be made u/s 144 without affording an opportunity to the person against whom it is proposed to be made, to show cause against the same and if no notice is issued, the magistrate should record his reasons to show that the occasion is considered to be one of emergency, failing which the order made ex parte cannot be sustained. Since the High Court has power to interfere where the order is made without jurisdiction and the proceedings are judicial in nature, the order should not be bald but should contain at least some reasons to show that the magistrate has applied his mind and was satisfied about the existence of factors necessary for action u/s 144, Cr. P.C. For the reasons stated above, I must agree with the petitioners that the impugned order is one made without jurisdiction and is, therefore liable to be quashed."
[14] Mr. N. Ibotombi, learned senior counsel appearing for the petitioner also submitted that if the District Magistrate, Churachandpur was of the considered view that there was requirement of passing prohibitory order under Section 144 Cr.P.C., such prohibitory order should have been directed against the defendants in the original suit in order to protect the rights and interests of the present petitioner and his cabinets as directed by Competent Civil Court and not against the petitioner and other lawful office bearers of PTC/GHQ. It has further been submitted that such exercise of powers by the District Magistrate, at the behest of one defendant in the original suit against whom the Civil Court has passed necessary order, is nothing but arbitrary and colorable exercise of power and accordingly, such action of the Magistrate is required to be interfered with by quashing and setting aside the whole proceedings.
[15] Mr. Y. Ashang, learned PP appearing for the respondents submitted that the provisions under section 482 Cr.P.C. and section 397 Cr.P.C. are Cril. Petn. No. 43 of 2021 Page 9 quite distinct and different proceedings and the petitioner can invoke either of the 2 (two) Sections and not both the provisions at the same time. As the present petition has been filed for invoking both the provisions of Section 482 Cr.P.C. and Section 397 Cr.P.C concurrently, the same is not maintainable. [16] The learned PP also submitted that the impugned prohibitory order was issued by the District Magistrate, Churachandpur as an immediate and temporary preventive measure in order to prevent any untoward incident such as breach of peace, disturbances to public tranquility and imminent danger to human life and property.
It has also been submitted that Section 144 Cr.P.C. is a self-contained provisions and the life span of any order issued under the Section shall remain in force for a period of 2 (two) months from the date of issuance of the order unless the State Government extended the period by issuing notification. The learned PP further submitted that under sub section (5) to (7) of Section 144 Cr.P.C., there is a specific provisions for redressing the grievances of the aggrieved party before the concerned authorities and as the petitioner approached this Court by filing the present petition under Section 482 of the Cr.P.C. without availing those alternative remedies, the present petition is not maintainable. In support of his contention, the learned PP has relied on the judgment passed by the Honb'e Apex Court in the case of "Popular Muthiah VS. State Represented by Inspector of Police" reported in (2006) 7 SCC 296 wherein the Hon'ble Apex Court has held in Paragraph 30-36 as under:-
"30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction Cril. Petn. No. 43 of 2021 Page 10 irrespective of the nature of the proceedings. It is not trammelled by procedural restrictions in that :
(i) power can be exercised suo motu in the interest of justice.
If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists.
"31. This Court in Dinesh Dutt Joshi v. State of Rajasthan while dealing with the inherent powers of the High Court held: (SCC p 573, para 6) "The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases."
"32. The decisions of this Court emphasised the fact that there exists a distinction between two classes of cases, viz., (i) where application of Section 482 is specifically excluded and (ii) where there is no specific provision but limitation of the power which is sought to be exercised has specifically been stated. "33. In R.P. Kapur v. State of Punjab, this Court summarized some of the categories of cases where inherent power should be Cril. Petn. No. 43 of 2021 Page 11 exercised to quash a criminal proceeding against the accused stating:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
The said decision has been noticed subsequently by this Court in State of Karnataka v. M. Devendrappa.
"34. This Court furthermore laid down that the inherent power of the High Court can be invoked in respect of the matters covered by the provisions of the Code unless there is specific provision to redress the grievance of the aggrieved party. (See Madhu Limaye v. State of Maharashtra and Raj Kapoor v. State). "35. It is also not in dispute that the said power overrides other provisions of the Code but evidently cannot be exercised in violation/contravention of a statutory power created under any other enactment.
"36. In State v. Navjot Sandhu it was stated: (SCC p. 657. Para
29) "29. Section 482 of the Criminal Procedure Code starts with the words 'Nothing in this Code'. Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is set out in Satya Narayan Sharma case this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few Cril. Petn. No. 43 of 2021 Page 12 and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."
[17] It is an undisputed fact that in the order dated 21.10.2021 passed in Judicial Misc. Case No. 75 of 2019 filed by the present petitioner and Judicial Misc. Case No. 79 of 2019 filed by the defendants in the original suit No. 1 of 2019, the learned Civil Judge (Jr. Division), Churachandpur held that the petitioner and his cabinets are lawfully elected office bearers of PTC/GHQ and rejected such claims made by the defendants and directed that the petitioner and his cabinets shall continue as the office bearers of the PTC/GHQ till the disposal of the said original suit. The learned Civil Judge (Jr. Division), Churachandpur also directed the OC of Churachandpur PS and SDO of Churachandpur to unlock the office of the PTC/GHQ and to hand over the same to the Executive Committee members represented by the present petitioners. The District Magistrate, Churachandpur has knowledge about such orders and directions given by the Competent Civil Court at the time of issuing the impugned prohibitory order. Despite having knowledge of such orders and directions, the District Magistrate, Churachandpur issued the impugned order on the basis of an application submitted by one of the Cril. Petn. No. 43 of 2021 Page 13 defendants in the original suit without holding any proper enquiry or without giving any notice to the petitioner and without any application of mind.
In my considered view, such action of the District Magistrate, Churachandpur amounts to sitting over or nullifying the order passed by a Competent Civil Court without any jurisdiction and accordingly, the proceedings taken up by the District Magistrate, Churachandpur under Section 144 Cr.P.C. and issuance of the impugned order are not sustainable and are liable to be struck down. It is the bounden duty of the District Magistrate as well as the SP Churachandpur to implement the lawful order passed by the Civil Judge (Jr. Division), Churachandpur. When once a competent Civil Court granted an injunction in favour of the petitioner, the District Magistrate had no jurisdiction to issue the prohibitory order in contravention or violation of that injunction. Even if the District Magistrate was of the view that there was need for some preventive action, he should have issued the prohibitory order in the aid of or to implement the injunction granted by the Civil Judge (Jr. Division), Churachandpur in favour of the petitioner and not against it or to nullify it.
[18] So far as the preliminary objections raised by the learned PP regarding the maintainability of the present petition are concerned, it has been held by the Hon'ble Apex Court in the case of Popular Muthiah's case (Supra) at paragraph 29 and 30 of the judgment that inherent power of the High Court under Section 482 Cr.P.C. can be exercised concurrently with the appellate or revisional jurisdiction. In view of the above, this Court did not find any merit in the contention advanced by the learned PP that the present Cril. Petn. No. 43 of 2021 Page 14 petition which had been filed for invoking the provisions of Section 397 Cr.P.C. and Section 482 Cr.P.C. concurrently is not maintainable. [19] Moreover, sub section (5) to (7) of Section 144 Cr.P.C. does not provide any remedy to an aggrieved person for seeking the relief of quashing the whole proceeding taken up by the District Magistrate under Section 144 Cr.P.C. and accordingly, this Court is of the view that the present writ petition which has been filed primarily seeking for quashing the whole proceeding taken up by the District Magistrate, Churachandpur under Section 144 Cr.P.C. is maintainable.
In the result the present criminal petition is allowed by quashing the entire proceeding of Case No. 4/28/2020-DC/CCP/250 before the learned District Magistrate, Churachandpur as well as the impugned prohibitory order dated 24.10.2021 passed by the learned District Magistrate, Churachandpur in the aforesaid case.
With the aforesaid direction, the present criminal petition is disposed of, however, without any cost.
JUDGE
FR/NRF
Sapana
Cril. Petn. No. 43 of 2021 Page 15