Bimla Kanta Bagchi vs Sanat Kumar Ghosh

Chatterji, J.—This application in revision is directed against an order passed in a proceeding u/s 144, Criminal P.C.

There is a piece of land between the residential house of the petitioner, Bimala Kanta Bagohi, and the tenanted land of the opposite party, Sanat Kumar Ghosh, regarding which a dispute arose between the petitioner and the opposite party. On 28th April 1937 the opposite party through his tenant filed a criminal case against the petitioner under Sections 147, 379 and 447, I.P.C., in respect of the disputed land, but it was dismissed by the Sub-Divisional Magistrate on 2nd June 1937. Immediately) afterwards the petitioner erected boundary pillars round the land. More than six months later, on 3rd January 1938, the opposite party lodged a sanha at the police station against the petitioner complaining that his land had been illegally taken possession of by the petitioner by erection of boundary pillars. The police submitted a, report on receipt of which the Sub-divisional Magistrate by his order dated 19th January 1938 issued notices on both parties. He then disposed of the matter simply by giving warning to the petitioner not to create any trouble. In the meantime the petitioner put a fence on the disputed land which was already demarcated by boundary pillars. On 12th April 1938 the opposite party filed an application before the Sub-divisional Magistrate, Purnea, for action u/s 144, Criminal P.C., against the petitioner with a view to the removal of the fencing.

The learned Magistrate started a proceeding u/s 144, Criminal P.C., and issued the usual notices. On 16th May 1938 he passed an order against the petitioner directing him to remove the fence within seven days. Against this order the petitioner went up in revision to the District Magistrate of Purnea who by his order dated 27th May 1938 set aside the order of the Sub-divisional Magistrate and remanded the case to him for drawing up fresh proceeding u/s 144, Criminal P.C. It is against this order that this application is directed.

Prom the above statement of facts it is clear that admittedly the petitioner has rightly or wrongly taken possession of the disputed land and has erected boundary pillars and fence round it. It is therefore difficult to understand how a Criminal Court could start a proceeding u/s 144, Criminal P.C., with a view to dispossess the petitioner from the disputed land. No doubt Section 144, Criminal P.C., gives a Magistrate the power to pass an order to prevent an immediate breach of peace but that Section by its terms does not authorize him to pass any mandatory order.

All that the Magistrate can do under that Section is to direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his manage0ment. In other words, the Section empowers a Magistrate to pass a restrictive order. The removal of the fence as asked for by the opposite party is not an act which the Magistrate is authorized by the Section to direct the petitioner to do.

There is another ground on which the proceeding u/s 144, Criminal P.C., must be discharged. The dispute obviously relates to immovable property and the proper procedure for the Magistrate to adopt was to draw up a proceeding u/s 145, Criminal P.C., provided, of course, he was satisfied that there was likelihood of breach of peace. In any view of the matter the proceeding u/s 144 was not at all justified. If the Magistrate considers that there is still any apprehension of breach of peace he may proceed according to law.

I allow the petition and set aside the order of the learned District Magistrate dated 27th May 1938 and further direct that the proceeding drawn up by the learned Sub-divisional Magistrate in pursuance of that order be dropped.