Patna High Court
Ram Prasad Sao vs Shankar Prasad Sao on 8 September, 1950
Equivalent citations: AIR1951PAT90, AIR 1951 PATNA 90
ORDER Rai, J.
1. This is an appln. by the petnr. who was the second party to a proceeding under Section 144, Cr. P. C. before M. G. V. Lele, Mag. first class, Purulia. The proceeding was started in connection with the breach of the peace concerning the possession of plot Nos. 1101 & 1093 of village Brojopur. Proceedings were started on a police report dated 26-6-1950. On 30-6-1950, the learned Mag. issued notices to both the parties forbidding them not to go upon the land. After they had both filed their show-cause petns. he heard the parties & passed an order on 22-7-1950, in the following words;
"I find the second party in possession, make the order dated 30-6-50 absolute against the first party & rescind it as against the 2nd party."
2. The first party thereafter moved the Dy. Comr. of Manbhum under the provisions of Section 144, Sub-clause (4), Criminal P. G. The learned Dy. Comr., however, set aside the order of the Mag. & substituted the following order in its place:
"In the result the order of the learned lower Ct. is set aside & the appeal is allowed. The order under Section 144, Cr. P. C. is modified. It will be in force against the opposite party."
3. Mr. Mukherji on behalf of the petnr. urges that the order of the learned Dy. Comr. of Manbhum is without jurisdiction. According to him he had no jurisdiction to order rescinding the second party from going near the land, because the words of Sub-clause (4) of Section 144 do not authorize him to pass that order. He contended that the words "rescind or alter any order made under this section'' mean rescinding or altering the order passed against the party by the Mag. It does not authorise the Dy. Comr. to pass an order against the present petnr. as he has done in the present case. In support of his contention he relies upon the case of Ganpat Singh v. Emperor, 3 Pat. L .J. 287: (A. I. R. (5) 1918 Pat. 672: 19 Cr. L. J. 880), where a D. B. of this Ob. held that the Mag. cannot substitute an order of his own forbidding the successful party before the first Ct. from going near the land or exercising a right of possession. He also reld. upon the case of Sevugan v. Karuppan, A. I. R. (24) 1937 Mad. 487: (38 Cr. L. J. 864) & also on an unreported ease of Dewan Singh v. Deo Narain Singh, Cr. Revn. No. 737 of 1950, decided by Ramaswami J. on 28-8-1950: (A. I. R. (38) 1951 Pat. 253).
4. On behalf of the opposite party, the Judgment reported in Ganpat Singh's case, 3 Pat. L. J. 287: (A. I. R. (5) 1918 Pat. 672: 19 Cr. L. J. 880) is sought to be distd. on the ground that in that case initial notices had not been issued against both the parties; it had been issued against only one of the parties, the Mag. exercising his power under Section 144 Sub-clause (4), Cr. P. C. wanted to make the rule absolute against that party which had not been even asked to show cause. In this case he submitted that the initial notices had been issued against both the parties & both of them had an opportunity to show cause. In this connection he also refd. to the case of Panchkesar Kuar v. Madho Singh, 1938 P. W. N. 709), laying down the same proposition of law as is laid down in the case of Ganpat Singh v. Emperor, 3 P. L. J. 287: (A. I. R. (5) 1918 Pat. 672: 19 Cr. L. J. 880). Mr. Ghosh appearing for the opposite party also refd. to the case of Manu Khan v. Sundar Singh, 15 P. T. L. 216: (A. I. R. (21) 1934 Pat. 313) where a D. B. of this Ct. had refused to interfere with an order passed by a Mag. under Section 144, Sub-clause (4), Cr. P. C., altering the order passed by the first Ct. & substituting another order of himself. Though the facts & circumstances of that case are not on all fours with the facts & circumstances of the present case, the principle of law enunciated in that case, according to him, supports his contention.
5. In the present case, I find that the notices were issued on 30-6-1950 & the order has spent its force by this date. Though there are several decisions of this Ct. wherein it has been held that this Ct. has power to interfere even if the order has spent its force, yet in the facts & circumstances of the present case I am not inclined to do so. It may be noted that the order passed under Section 144. Cr. P. C., is a sort of temporary measure to prevent the breach of the peace. It has been repeatedly held by this Ct. that the order has no evidentiary value on the question of possession I In the present case neither the order passed by the first Ct. nor that of the learned Dy. Comr. can be used as evidence of possession whenever the question of possession has to be decided in future.
6. In the circumstances of the present case it is fit & proper that if any subsequent dispute crops up, the Mag. will be well advised to start proceedings under Section 145, Cr. P. C. to effectively decide the question of possession of one party or the other on legal evidence led in the case.
7. With these observations the petn. is rejected.