Anjani Nandan Misra vs State and Another

H.N. Kapoor, J.—This petition has been filed by Anjani Nandan Mishra for quashing the order of the City Maglkrate, Vafanasi, dated 13th August, 1975 passed in a case u/s 144 Code of Criminal Procedure. In the petition it. Was wrongly mentioned that it was in the case of 107/116 Code of Criminal Procedure and as such an application for amendment has been filed which was allowed, and, Section 144 Code of Criminal Procedure was ordered to be substituted for Section 107/116 Code of Criminal Procedure. The impugned order dated 13th August, 1975 is to the effect that it appeared to the Magistrate from the report of the Inspector In-charge, Ghowk, Varanasi dated 10-8-1975 that a parallel working committee under the presidentship of Shri Anjani Nandan Mishra for the management of Bal Niketan Junior High School Sankatha Ghat Varanasi had been formed and a crisis had arisen in the management of the school with the result that there was imminent danger to public peace and tranquility and as such there was sufficient ground for proceeding u/s 144 Code of Criminal Procedure. By this order, the Petitioner as President and members of the committee under him were restrained from putting any obstruction in the working of the Committee of the institution established under the presidentship of Laxmi Narain Rastogi. It was further ordered that as the matter was of emergency, and the circumstances did not admit it of serving of the notices in due time by the persons against whom the order was directed, ex-parte order was being passed.

According to the Petitioner, he was first elected as a member of the General body of the school in the year 1968 and he was elected as President of the Managing Committee by the general body on 13th July, 1975. It has further been averred that there was no question of any parallel Managing Committee. It was also stated in the petition that Laxmi Narain Rastogi himself had intimated to the Petitioner in reply to his letter dated 5th July, 1975 that he had already submitted his resignation to the Basic Siksha Adhikari and he had nothing to do with the institution. He had also refused to nominate two persons of his party for being appointed in the Managing Committee. He had stated in his letter dated 6th July, 1975 that he was ill for a considerable time and so he wanted to be excused. A copy of the letter sent to Shri Rastogi dated 5-7-1975 and the reply of Shri Ras togi dated 6--7-1975 has been annexed as ''Annexure I''. According to the Petitioner, he was validly elected as President in the meeting of the general body called on 13th July, 1975 and ever since was in the management of the institution. It was also averred that it was due to some political pressure that the City Magistrate had taken proceedings u/s 144 Code of Criminal Procedure. In the petition, it was also stated that the Petitioner had already executed surety bonds as required by the City Magistrate in the proceedings u/s 107/116 Code of Criminal Procedure which too had been instituted against him.

In the counter-affidavit, it is stated that proceedings u/s 107/116 Code of Criminal Procedure had been taken against the Petitioner. It is also stated that Shri Laxmi Narain Rastogi was forced to send his resignation to the Basic Siksha Adhikari and some endorsement was also obtained from him under threat, but the Basic Siksha Adhikari has not accepted his resignation, as he had no right to do so. According to the counter-affidavit, Shri Rastogi continues to be the President and the committee under him was the properly constituted Managing Committee and there was no other Managing Committee. It is stated that the Petitioner was not a member of the general body and there was no election by the general body of the Managing Committee on 13-7-1975. A copy of the report of Basic Siksha Adhikari too has been annexed along with this counter-affidavit. In this report, it is stated that Shri Rastogi had submitted his resignation, but the Basic Siksha Adhikari himself had no right to accept the same and the resignation should have been submitted before the Managing Committee and it was returned back to him. It is further stated in the report that subsequently, Shri Rastogi gave up the idea of submitting his resignation and so he continued to be the President of the Committee. Some rules were cited according to which the Managing Committee was to be elected for three years and in case there was any vacancy that had to be filled. It was, therefore, stated that mid-term election was not valid. Moreover, in the letter which the Petitioner is said to have sent to the Basic Siksha Adhikari intimating that a new Managing Committee had been elected on 13th July, 1975 and he was elected as President, it was not stated as to how many persons were present at the time of election. In the report, it was also stated that there was a dispute about the management of the institution between two committees which could properly be resolved by a civil suit and that the Education Department could only withdraw recognition which would be harmful to the interest of the students. He, therefore, recommended that the proceedings be taken u/s 144 Code of Criminal Procedure.

This counter-affidavit was filed on the date of hearing and as such no rejoinder affidavit could be filed, but the Petitioner has filed a certified copy of the report of Inspector-in-charge, Chowk, Varanasi, dated 10-8-1975 on the basis of which the impugned order u/s 144 Code of Criminal Procedure was passed. This report clearly shows that at that time the Managing Committee under the President ship of Shri Anjani Nandan Mishra had the control over the management of the school and his party was more powerful than the party of Shri Laxmi Narain Rastogi and as such the Managing Committee under the President ship of Laxmi Narain Rastogi was not instituted to take back the control of the management from Sri Anjani Nandan Mishra. He, therefore, recommended that proceedings be taken u/s 144 Code of Criminal Procedure and the illegal committee under the President ship of Shri Anjani Nandan Mishra be restrained from taking any part in the management. According to this recommendation it would be possible for the District Inspector of Schools or the Basic Siksha Adhikari to get a new management elected.

Learned Counsel for the Petitioner has argued that it is clear from the report that the management was actually in the hands of the Managing Committee of which the Petitioner was the President and the effect of the exparte order passed u/s 144 Code of Criminal Procedure was to take possession of the school and the management from the hands of that committee and to give the same to Laxmi Narain Rastogi, which was beyond the jurisdiction of the Magistrate u/s 144 Code of Criminal Procedure. In support of his contention, he has placed reliance on Sairu Seikh v. Shyam Lal 1952 CriLJ 566 and Indrasan Rai v. Enayat Khan 1952 CriLJ 1124. In the Calcutta case it was held that Sections 144 and 145 Code of Criminal Procedure deal with possession and possession only, and they are intended to protect persons in possession and to prevent breaches of peace. In both the cases, it was held that summary power u/s 144 Code of Criminal Procedure could not be invoked for the purpose of taking away possession from one party and putting the other party in possession. It was further held that the question of title could not be decided under these summary proceedings. Under the circumstances of those cases, it was held that the proper remedy, when the dispute was about immovable property, was to take recourse to Section 145 Code of Criminal Procedure and not to Section 144 Code of Criminal Procedure.

Learned Counsel for the opposite party, Laxmi Narain Rastogi, has argued that since no rejoinder affidavit has been filed in this case, the facts stated in the report of the Basic Siksha Adhikari, which has been annexed to the counter-affidavit, should be deemed to be correct and, as such, on the basis of this report it can be held that the Managing Committee under the president ship of the Petitioner was not validly elected, No doubt, the facts that such a report had been submitted has not been disputed, but the Petitioner cannot be held to be bound by the facts stated in that report. The Basic Siksha Adhikari based his report in the absence of the material with regard to the actual number of persons present at the meeting dated 13th July, 1975 and whether the members present were members of the General body. In fact, he himself had stated that the dispute about the two Managing Committees could be decided by a Civil Court. He, however, recommended for proceedings being taken u/s 145 Code of Criminal Procedure. The learned Magistrate, however, took proceedings u/s 144 Code of Criminal Procedure and not u/s 145 Code of Criminal Procedure. u/s 145 Code of Criminal Procedure a disputed property is attached and possession is delivered to one of the parties after evidence has been recorded and after the Magistrate is satisfied that the party was actually in possession. In the present case, the effect of the ex-parte order passed u/s 144 Code of Criminal Procedure was that the Managing Committee under the president ship of the Petitioner, which was actually in the control of the management of the institution according to the police report dated 10--8--1975, was ousted and the other Committee under the presidentship of Shri Rastogi was put in the control of the management when that committee was not managing the institution. In fact, Shri Rastogi had himself informed the Petitioner on 6-7-1975 that he did not want to take part in any working of the institution, and that he had already submitted his resignation and also because he was ill. He had, thus, surrendered the management of the institution to the Petitioner. The report of the Basic Siksha Adhikari also corroborates the fact that Shri Rastogi had submitted his resignation to the Basic Siksha Adhikari and that it was only subsequently that on the per-suation of his associate he gave up the idea of resigning. Learned Counsel for the opposite party has placed reliance on the case of Bahori Lal Paliwal v. District Magistrate Bulandshahar 1956 AWR 423 (FB). In that case, it was held that a person continued to be Chairman of the Town Area Committee in case he had not sent his resignation to the proper authority and the same was wrongly accepted. That matter was decided in writ jurisdiction by this Court. When there is a dispute about the legality of the election of the other Chairman and the Town Area Committee under him, the dispute is certainly of civil nature which can be decided by a civil court. In the present case, the facts are, according to the police report, that the Managing Committee under the Petitioner was in actual control of the management and Shri Rasi togi had himself intimated to the Petitioner that he was not curious to have any concern with the institution. He thus voluntarily surrendered the management to the Petitioner. The object of Section 144 Code of Criminal Procedure certainly cannot be to oust one particular person or party which is acting under the colour of office and put another person or party in possession of the property or in the management of the institution. It is a different matter that the title of such person can be challenged in a civil court. Learned Counsel for the opposite party has also placed reliance on various cases of different High Courts in which it was held that orders had to be passed u/s 144 Code of Criminal Procedure after taking into consideration the legal right of a particular committee or party while there was apprehension of breach of peace in connection with taking out procession etc. in public thoroughfare. Those cases are clearly distinguishable. They deal with taking out processions etc. Learned Counsel for the opposite party has also placed reliance on the case of Haji Mohammad Ismaid Vs. Munshi Barkat Ali and Others, . In that case, there was dispute between the Mutwalli of the mosque and another person who claimed to be Pesh Imam. The learned Magistrate passed an order u/s 144 Code of Criminal Procedure in favour of the Pesh Imam. The result of which was that the Mutwalli was ousted. That order was quashed by the Calcutta High Court. It was observed:

It seems to me that the proper course that the Magistrate ought to follow is to find out which party is wrong and if he finds on the evidence that the second party is in the wrong and is interfering unnecessarily with the exercise of the legal powers of the first party, he ought to bind down the second party restraining them from committing any act which may lead to a breach of the peace.

Learned Counsel for the opposite party has relied on these observations. In that very case, Court had also observed that the proper course for the congregation if it was not satisfied with the appointment of the particular person as Pesh Imam made by the Mutwalli, the only course open to them was to go to the proper court to have the Mutwalli removed or to make him adopt the proper and legal mode of managing the wakf property. In the present case, the Magistrate did not conduct any enquiry whatsoever and passed the ex-parte order considering it to be a case of emergency. It has been stated in the order that a parallel working committee under the presidentship of Shri Anjani Nandan Mishra for the management of the institution has been formed and therefore a crisis has arisen in the management of the school with the result that imminent danger to public peace and tranquility was likely to take place, but the fact remains that, according to the police report, only the Managing Committee under Shri Anjani Nandan Mishra was in the actual control of the management and, as such, was de facto Managing Committee after Shri Rastogi himself had voluntarily withdrawn from the Management. The object of Section 144 Code of Criminal Procedure certainly is not to oust such a person from the management and to put another person in the management simply at the sweet will of the Magistrate. He has clearly acted beyond his powers. In case there was an apprehension of breach of peace the recourse could have been taken to proceedings u/s 107/116 Code of Criminal Procedure. In the present case, such proceedings have also been started and the Petitioner has furnished the necessary security bonds asked for.

Learned Counsel for the opposite party has also placed reliance on the case of Babulal Parate Vs. State of Maharashtra and Others, in which case the validity of Section 144 Code of Criminal Procedure was challenged in view of the provisions of Article 19(1)(a)(b) sub clause (2) and (3) but it was held that Section 144 Code of Criminal Procedure was not invalid on this ground and that a Magistrate could take action u/s 144 Code of Criminal Procedure in an emergency where danger to public order is genuinely apprehended. It was certainly not laid down in that case that this Court cannot even look into the order for satisfying itself whether the Magistrate has acted beyond his powers.

In the result, the petition is allowed. The order of the City Magistrate, Varanasi dated 13th August, 1975 passed u/s 144 Code of Criminal Procedure and the proceedings pending on the basis of this order are quashed.