Patna High Court
Jamuna Prasad Bhagat And Ors. vs Ramprit Sah And Anr. on 25 September, 1957
Equivalent citations: AIR1958PAT92, 1957(5)BLJR780, 1958CRILJ207, AIR 1958 PATNA 92, 1957 BLJR 780 ILR 36 PAT 1302, ILR 36 PAT 1302
JUDGMENT Jamuar J. 1. This application has been placed before a Division Bench as it raises a point of considerable importance and since there appear to be apparently conflicting decisions of single Judges of this Court. 2. On 11th of July, 1951, a proceeding under Section 144 of the Code of Criminal Procedure was initiated by the Sub-Divisional Magistrate of Purnea in which the petitioners were the first party and the opposite party were the second party on the ground that there was an apprehension of a breach of the peace between them with respect to certain land. At the time, some jute crops were standing on the disputed land. The Sub-Divisional Magistrate accordingly ordered for the harvesting of this crop and directed that it would be kept in the custody of one Munshi Gope, who was one of the second party in the proceeding. It appears that the proceeding under Section 144, Criminal Procedure Code, was not disposed of on its merits, but it was dropped after the expiry of two months. But again a fresh proceeding was started on the very same day. It is surprising that even this second proceeding as also some other successive proceedings were similarly dropped and then initiated and dropped again. This procedure continued till November, 1952, without any final orders having been passed with respect to the dispute between the petitioners and the opposite party. 3. Then, on 24th of November, 1952, on an application made by one of the parties, the then Sub-Divisional Magistrate commenced a proceeding under Section 517 of the Code of Criminal Procedure for the restoration of the jute crop which had been harvested and kept in the custody of Munshi Gope, and an enquiry was conducted by another Magistrate whose report showed that the first party had grown the crop and were thus entitled to appropriate it. The Sub-Divisional Magistrate, accepting this report, directed that the entire quantity of jute be now delivered to the first party. As against this order, the second party moved the Sessions Judge under Section 520 of the Code of Criminal Procedure challenging the validity of the order passed by the Sub-Divisional Magistrate on the ground that he had no jurisdiction to pass any order under Section 517 of the Code in respect of the usufruct of a piece of land which had been the subject matter of a dispute in a proceeding under Section 144, Criminal Procedure Code, thus contending that the provisions of Section 517 of the Code did not apply to a proceeding under Section 144, Criminal Procedure Code. 4. The learned Additional Sessions Judge, who heard the application filed under Section 520, Criminal Procedure Code, before the Sessions Judge, accepted the contention raised by the second party and held in his order dated 30th June, 1955, that the order passed by the Sub-Divisional Magistrate under Section 517 of the Code of Criminal Procedure for the restoration of the jute crop was illegal and consequently be set aside that order. The present application before us is against this order of the learned Additional Sessions Judge, and the question for consideration is whether an order can be passed under Section 517 of the Code of Criminal Procedure for the restoration of the crops of a land which had been the subject matter of a proceeding under Section 144, Criminal Procedure Code. 5. The following four decisions of single Judges of this Court, which do not appear to have been reported, were cited before us. 6. The earliest of these four is the case of Mahabir Mandal v. Rameshwar Jadaw, Cri. Revn. No. 1311 of 1943 (Pat) (A). In this case too a proceeding under Section 144, Criminal Procedure Code, had been commenced but before the cause shown by the parties could be considered, the period of sixty days expired and the proceeding was dropped. But during the course of the proceeding, the crop on the disputed land had been harvested and kept in custody of a third person. Subsequently, on an application of the first party, the Sub-Divisional Magistrate directed the harvested crop to be given to them. It was held that a proceeding under Section 517 of the Code of Criminal Procedure could be taken. It was pointed out that the section provided that, when an inquiry or trial in any criminal 'Court is concluded, the Court may make such order as it thinks fit for the disposal of any property or document produced before it or in its custody. The Sub-Divisional Magistrate was a criminal Court within the meaning of this section. The only question which created some doubt was whether a proceeding under Section 144 was an "inquiry". The word ''inquiry" is defined in Clause (k) of Sub-section (1) of Section 4 of the Code. But the definition is not an exhaustive one. It defines an "inquiry" to include every inquiry other than a trial conduced under this Code by a Magis-trate or Court. When a Magistrate exercises powers under Section 144 of the Code, he does not exercise them arbitrarily. The Magistrate in effect holds an inquiry between the parties. The parties file their written statements and appear and argue their respective cases before him, A proceeding under Section 144 of the Code is accordingly an inquiry. In the course of such an inquiry, if certain crops are taken into the custody of the Court, upon the conclusion of the inquiry (even though the proceeding originally initiated under Section 144 of the Code is ultimately dropped, the Magistrate is empowered to deal with the disposal of the crop by an order made under Section 517 of the Code. 7. The next ctse is Criminal Rewn. No. 936 of 1944 (Pat) (B), which is between the same parties as the case just mentioned above and which appears to have come up again after a remand. The learned single Judge who dealt with this case expressed his agreement with the decision given in the earlier case that in the circumstances already stated the Magistrate was really acting under Section 517 of the Code of Criminal Procedure when he passed the order that the harvested crop should be made over to one of the parties. 8. Then there are two later cases. In Jagernath Choudhry v. Sambhu Choudhary, Cri. Revn. No. 709 of 1953 (Pat) (C), also un-reported), a proceeding under Section 144 of the Code of Criminal Procedure had been initiated, and in the course of it the Magistrate had passed an order that the jute crop which had been harvested from the land, subject matter of the proceeding, could not be handed over to either party under the provisions of Section 517 of the Code of Criminal Procedure. This order was upheld by the Additional Sessions Judge against whose order the application was moved in this Court. It was argued in support of that application that the proceeding under Section 144 of the Code of Criminal Procedure having ended, the crop should be returned to the petitioner as it had been found by the officer who had inquired into that matter that the jute crop had been taken from the custody of the petitioner. It was held by this Court that a proceeding under Section 144 of the Code could not be described as an inquiry by a Court and that, therefore, in terms. Section 517 of the Code did not apply and no order under that section could be passed in favour of the petitioner. It was accordingly held that the application made under Section 517 of the Code was not maintainable. I may state that the two earlier decisions, already referred to, were not cited in this case. 9. The last case is that of Magni Ram v. Prem Das, Criminal Ref. No. 83 of 1954 (D) (also an unreported case). This was a reference made by the District Magistrate for setting aside an order of the Sub-Divisional Magistrate directing delivery of certain crops grown in a field which had been the subject matter of a proceeding under Section 144 of the Code of Criminal Procedure between the parties. In this case also the proceeding had been dropped after the expiry of two months and thereafter an application was filed under Section 517 of the Code. On this application, the Sub-Divisional Magistrate, after an inquiry had been made, directed that Prem Das, who had grown the crop through his own bataidar, should be given the crop. Then Magni Ram went in revision before the District Magistrate, who made the reference to this Court for setting aside the order passed by the Sub-Divisional Magistrate. The learned Judge, before whom, the application came up for final hearing, referred to the case in Criminal Revn. No. 709 of 1958 (Pat) (C), which has been referred to by me above, and relying upon it held that a proceeding under Section 144 of the Code could not be described as an inquiry by a Court. It was accordingly held that the Sub-Divisional Magistrate was wrong in law in applying the provisions of Section 517 of the Code. The reference was, therefore, accepted and the order of the Sub-Divisional Magistrate was set aside. 10. In an earlier case of this Court reported as Govind Ram v. Basanti Lal, ILR 7 Pat 269 : (AIR 1929 Pat 46) (E), it was held by Jwala Prasad J. that a proceeding under Section 144 of the Code of Criminal Procedure was a judicial proceeding. A "judicial proceeding" has been defined in Section 4 (m) of fee Code as including "any proceeding in the course of which evidence is or may be legally taken on eath." It was pointed out that an order passed by a Magistrate under Section 144 of the Code is subject to the revisional jurisdiction of this Court under Sections 435 and 439 of the Code which implied that the proceeding adopted by the Magistrate under Section 144 of the Code was a judicial proceeding, and the order passed by him was a judicial order. A Magistrate accordingly is bound to dispose of a proceeding under Section 144 of the Code judicially. The case of In re, Krishnavatharsm, AIR 1948 Mad 117 (F), also supports the view that a proceeding under Section 144 of the Code of Criminal Procedure is an "inquiry" within the meaning ol the definition of that word as provided in the Code of Criminal Procedure. It was observed in this case that when an application under Section 144 (4) of the Code of Criminal Procedure is made and when the petitioner offers evidence to show cause against continuance of an ex parte order against him, it is the obvious duty of the Magistrate to hold an inquiry, and he cannot without holding that inquiry anticipate what the nature of the evidence would be and confirm the ex parte order. 11. On a review of the cases cited before us, I am of the opinion that when a Magistrate initiates a proceeding under Section 144 of the Coae, he takes up an inquiry between the parties within the meaning of that Code, and the inquiry is obviously held by a criminal Court within the meaning of Section 517 of the Code. It is true that the Code has no express provision relating to an inquiry under Section 144. A procedure, however, is provided, namely, that the Magistrate shall afford to the parties an early opportunity to appear before him either in person or by a pleader and showing cause against the order; argument is also addressed before the Magistrate. It is in the course of such an inquiry that the jute crops in the present case before us came into the custody of the Court. The inquiry having now been concluded, the Magistrate was empowered to deal with the disposal of the jute crops by an order under Section 517 of the Code of Criminal Procedure. In the circumstances, I am of opinion that the Sub-Divisional Magistrate was empowered to make an order under Section 517 of the Code of Criminal Procedure in respect of the restoration of the jute crops to one of the parties in the proceeding. The view of the learned Additional Sessions Judge that the order of the learned Sub-Divisional Magistrate was illegal on the ground that he had no such power to pass an order in respect of the usufruct of the land, the subject matter of dispute in a proceeding under Section 144 of the Code of Criminal Procedure, is, therefore, erroneous and to that extent it must be set aside. 12. It was, however, argued on behalf of the opposite party that since the learned Additional Sessions Judge was of the view that the Sub-Divisional Magistrate had no jurisdiction to pass such an order, he had declined to go into the merits of the case as to whether the jute crops should be made over to the first party or not. This is correct, and I think the Court below should now be directed to go into that question. 13. The result is that I would allow this application, set aside the order of the learned Additional Sessions Judge dated 30th June, 1955, and remand the case to him for a consideration as to which of the two parties is entitled to the restoration of the jute crops, being the produce of the land which was the subject matter of the proceeding under Section 144 of the Code, and then dispose of the application according to law. Chaudhuri, J.
14. I agree.