Bindeshwari Singh and Others vs Raghunandan Mahto and Others

Dhavle, J.—This is an application in revision against an order of the District Magistrate of Patna refusing to interfere with an order of the Sub-Divisional Magistrate of Bihar passed against the petitioners u/s 144, Criminal P.C. The petitioners'' case is that they took a settlement of a one-third share of the opposite party in Khatan No. 301 which had been brought to sale in execution of a rent decree obtained by the landlords. The auction-purchaser from whom the petitioners took their settlement took out dakhal-dehani on 19th May 1936. There was then a proceeding u/s 144 of the Criminal P.C., which ended adversely to the auction-purchaser, the Magistrate holding that his proper remedy was a partition suit.

There was accordingly a partition suit in 1937, and this ended in the usual decree with a dakhal-dehani on 8th May 1938.

The petitioners claim to have taken settlement from the auction-purchaser, after the second dakhal-dehani, on 12th July 1938. In December 1938 there was a proceeding u/s 144 between the petitioners and the tenants, the opposite party, and this ended in favour of the opposite party because as the Magistrate said in his order of 4th January 1939, a Sub-Deputy Magistrate who had been sent to make the local inquiry came to the conclusion that possession was with the old tenants. The matter was taken up in revision to the District Magistrate who declined to interfere on the ground that the period of two months had expired.

He observed, however, that

it is desirable to determine the question of actual possession in a proceeding u/s 145, Criminal P.C., if again a dispute arises and breach of the peace is apprehended.

Notwithstanding this, fresh proceedings were started in November last u/s 144 and these were concluded on 15th December, when the Sub-Divisional Magistrate made the rule under that Section absolute against the petitioners and discharged it as against the opposite party; and he did this on the ground that in the previous proceeding u/s 144 the opposite party had been found to be in possession, that the petitioners could not have come into possession since and that

it only appears that since the learned District Magistrate observed in appeal that it may be desirable to decide the matter u/s 145, Criminal P.O., that the first party (the petitioners in this Court) have started fresh attempts to falsely claim actual possession in the lands.

This order was taken up in revision to the District Magistrate, who referred to the previous order of the District Magistrate regarding this being a proper case in which proceedings u/s 145 should have been started; but as the crop growing on the land had already been cut and removed, and the order passed by the Sub-Divisional Magistrate expired on the day of the order of the District Magistrate, he declined to interfere. The learned advocate for the petitioners has contended that this was a case which should have been dealt with by the Sub-Divisional Magistrate not u/s 144, but u/s 145, Criminal P.C., and in support of this contention he has referred to Chrestien v. Carter AIR (1939) Pat 512 a somewhat similar case in which I had occasion to observe that:

To repeat such an order on the ground of maintaining the status quo is to compel the unsuccessful party to resort to the Civil Court even though the Criminal Court may have done nothing to look into the rights of the parties and further, indirectly to prolong the effect of the original order beyond the period of two months fixed in Sub-section (6) of the Section. Such a use of the Section is altogether unwarrantable.

The learned advocate for the opposite party has endeavoured to support the orders of the lower Courts by citing Munni Lal Sao v. Gatti Ahir AIR (1925) Pat 514 and Lachman Das v. Ram Chhabila AIR (1929) Pat 415. In the former of these cases the learned Judges declined to interfere with an order u/s 144 on the ground that as it had spent its force, it was not necessary to set it aside and that the observation of the Magistrate as regards the possession of one of the parties was simply an incidental observation. In Lachman Das v. Ram Chhabila AIR (1929) Pat 415 it was held that Section 144 was properly applied in a case where a Magistrate of experience found on the materials before him that there was no bona fide dispute as to actual possession.

The learned advocate has contended that in the present case the learned Magistrate properly arrived at the conclusion that there was no bona fide dispute, but the Magistrate''s conclusion really rests on the report of the local enquiry that was made by the Sub-Deputy Magistrate in the proceeding a year ago. Reliance on that proceeding brings about the evil to which I referred pointedly in Chrestien v. Carter AIR (1939) Pat 512.

It might have been un-necessary to interfere with the order of the Magistrate as it is time expired if the Magistrate had not fallen into the error. I will use no stronger word-of resorting to Section 144 notwithstanding the very proper direction of the District Magistrate a year ago that it was a proper case in which proceedings u/s 145, Criminal P.C., should have been started.

An order which has been deliberately passed u/s 144 when the Magistrate knew and had been told that he should proceed u/s 145, if necessary, cannot be left alone merely because it is time expired, for it is impossible to encourage the Magistrate to use his powers in that way. The result is that this rule must be made absolute. The order of the Sub. divisional Magistrate, though it is time expired, must be regarded as an order that was not passed properly.