Patna High Court
Mr. R.E. Blong vs Emperor on 18 June, 1924
Equivalent citations: 82IND. CAS.42, AIR 1924 PATNA 767
JUDGMENT Kulwant Sahay, J.
1. This is an application in revision against an order passed by the District Magistrate of Monghyr, dated the 20th May, 1924, purporting to be one under Section 144 of the Criminal Procedure Code. The order runs thus: "From an information received I consider there is a very serious danger to Mr. R.E. Blong and an imminent likelihood of a disturbance of the public peace if he proceeds back to Mahal Maheshri or Charkapathar, accordingly I issue an order under Section 144, Criminal Procedure Code, forbidding him to return to Mahal Maheshri or Charkapather and as it is a case of emergency I pass this order ex parte". It appears that after this order was served on the petitioner he filed a petition objecting to the order. The learned District Magistrate heard the Pleader for the petitioner, but' by his order dated the 26th May,' 1924, he upheld his previous order of the 20th May, 1924. The point taken by the learned Vakil for the petitioner against this order is that' it contravenes the provision of Section 144 inasmuch as it does not state the material facts of the case. Secondly it is argued that the order is vague and indefinite. From the order as it stands it is difficult to make out what the material facts were which led the District Magistrate to pass his order of the 20th May, 1924. The order, as it stands, no doubt, complies with the provision contained in paragraph 1 of Sub-section (1) of Section 144. It shows that in the opinion of the District Magistrate there was sufficient ground for proceeding under this section and immediate prevention or speedy remedy was desirable. But under Section 144 something more is necessary to be done than a mere recital of the fact that in the opinion of the District Magistrate there was sufficient ground for proceeding under Section 144. The second paragraph of Sub-section (1) of Section 144 provides that when a Magistrate is of opinion that there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in manner provided by Section 134, direct any person to abstain from a certain act.
2. The order, as it stands, does not state any facts relating to the case in order to show that there was any justification for making the order under Section 144. From the order, as it stands, all that can be gathered is that there is danger to the petitioner himself and that there is an imminent likelihood of a disturbance of the public peace if the petitioner proceeds back to Mahal Maheshri or Charkapathar; but what the "material facts were do not appear from the order. It, however, appears on a reference to the petition filed in this Court that the petitioner is the Manager of Mr. Chrestien, Mica merchant and zemindar of Taluka Maheshri, whose Head Office is at Charkapathar. Some time ago the petitioner was charged with having shot down a certain person named Chedi Singh of Maheshri, and that he and 21 other officers of Mr. Charestien were charged under various other sections of the Indian Penal Code, that the petitioner along with those officers was committed to the Sessions, and the trial was held with the aid of four Assessors, and after a trial extending over two months, the Assessors gave their unanimous opinion that none of the accused was guilty and that the learned Sessions Judge accepting the opinion of the Assessors acquitted the petitioner and other accused persons. From papers on the record it appears that certain arms and ammunition, belonging to the petitioner, were taken possession of and were in deposit in Court, that after the disposal of the Sessions case the petitioner wanted to take his arms and ammunition whereupon the Superintendent of Police represented to the District Magistrate that if the petitioner goes back to Maheshri with his arms and ammunition, there was likelihood of a breach of the peace and that the life of the petitioner was in danger. It is nowhere suggested that the breach of the peace, which was likely to take place if the petitioner returned to Maheshri or Charkapathar, would be occasioned by him. On the other hand, it appears from the order of the 20th May, 1924, that the breach of the peace was likely to be created by the other proprietors of Mahal Maheshri with whom Mr. Chrestien is in dispute and that it was in order to avert any danger to the safety of the petitioner himself that the order of the 20th May, 1924, was passed.
3. To my mind Section 144, Criminal Procedure Code, is not intended to restrict the liberty of an individual if there is no apprehension of a breach of the peace on account of any act to be done by him. The object of Section 144 is to enable a Magistrate in cases of emergency to make an immediate order for the purpose of preventing an imminent breach of the peace; but it is not intended to relieve him of the duty of making a proper enquiry into the circumstances which make it likely that such breach of the peace will occur. If it is found that a man is doing that which he is legally entitled to do and that his neighbour chooses to take offence thereat and to create a disturbance in consequence, it is clear that the duty of the Magistrate is, not to continue to deprive the first of the exercise of his legal right but to restrain the second from illegally interfering with that exercise of legal rights. Vide in the matter of Abdool v. Lakhi Narain Mandal 5 C. 132 : 2 Ind, Dec. (N.S.) 695.
4. If I am right in the interpretation of the order of the learned District Magistrate and if the only reason for making the order under Section 144 was to, save the life of Mr. Blong the petitioner and if on account of his return to Maheshri or Charkapathar there was a likelihood of a breach of the peace to be occasioned by the persons who are in dispute with him, the clear duty of the Magistrate was to take preventive action to bind those persons who were likely to cause a breach of the peace and not to restrict the petitioner from exercising his lawful rights.
5. In the second place the order restricts the petitioner from going back to Mahal Maheshri or Charkapathar, Now in so far as the order directs him not to go to Mahal Maheshri or Charkapathar the order is vague and indefinite. Mahal Maheshri, I am told, is a very big estate consisting of about 155 villages and extending over about 100 miles and Charkapathar is a village in Mahal Maheshri where the petitioner has got his head quarters. To restrict the petitioner from going anywhere in his zemindari, and I am told that Mahal Maheshri is the only zemindari of which the petitioner is the manager in the District of Monghyr, I am clearly of opinion that the order is vague and is not justified by the circumstances as disclosed in the petition filed in this Court. It is indefinite inasmuch as it does not name any specific place in Mahal Maheshri where he is prevented from going.
6. Then if the order prohibits him from going to Mahal Maheshri, I see no reason to make the further order restraining him from going to Charkapathar which is in Mahal Maheshri. The order is, therefore, vague and indefinite. For these reasons I am of opinion that the order of the 20th May, 1924, cannot be supported. This order is set aside.