Chote Lal Modi vs King Emperor

Bucknill, J.—This was an application in Criminal Revisional Jurisdiction to set aside an order of the Deputy Magistrate of Monghyr dated the 3rd April last under which he ordered that the applicant should be summoned for prosecution in connection with an alleged offence against the provisions of S. 182 of the Indian Penal Code. The circumstances under which this order has been made appear to me to be very unusual. The history of the matter is a somewhat lengthy one. The applicant''s mother is a tenure holder under the Darbhanga Raj in village Matsumbha in the Monghyr district. A number of persons are bataidars under the petitioner who looks after his mother''s properties. Now it is admitted that there had been some ill feeling of late between the petitioner and these bataidars. Suits u/s 40 of the Bengal Tenancy Act for commutation of rent were instituted and applications u/s 69 of the same Act for division of crops under the supervision of an officer of the Court were made. According to the applicant''s petition it is said that, when the peons, who were ordered by the Court to go to the locality to cut the crops, arrived there, it was found that the crops had been cut and removed by the tenants. Now on the 27th February last the applicant filed a petition before the Sub Divisional Officer, the gist of which was that he had himself reaped the crops on his own kas khash lands and stored them in his own khalihan; that he was afraid that the tenantry, when he began to thresh his crops, might cause trouble, in view of their previous action in removing the crops from the batai lands before it was possible for the peons to arrive so that division could properly he made between the applicant and the tenants. He therefore asked that a notice might be issued u/s 144 ordering the tenants not to go to his khalihan during these operations. The Sub Divisional Magistrate however ordered the police to make an enquiry, which they did, and, in their report dated the 5th March they clearly came to the conclusion and informed the Deputy Magistrate that the allegations which had been made by the petitioner were substantially correct. Upon this the Magistrate issued notice against both parties u/s 144 on the 9th March, and on the 12th the applicant asked by a petition that he might be allowed to thresh out and remove such portion of the crops in his khalihan as were not claimed in any way by the tenants, for one of the matters which was alleged by the tenantry appears to have been that some of the crops which were in the khalihan of the applicant in fact had come from their raiyati lands. On the 12th March the Magistrate, on the ground stated in an order of that date, ordered the police to let the applicant remove that part of his crop from the khalihan which was claimed by the second party but that the remainder was to be threshed and stored with a third person. Now, on the 28th March both parties appear to have filed their statements under the orders which had been passed on the 9th in connection with the proceedings under S. 144. The Deputy Magistrate then seems to have considered that it was desirable that he should make some local enquiry for in his order sheet he says-"Petitions filed by parties. I will enquire locally at 8.30 a.m. on the 30th instant. Parties must produce their witnesses on the spot. No adjournment will be given." I suppose that what was contemplated by the Deputy Magistrate was that he would hold his Court at the actual locality. However, on the 30th the Deputy Magistrate was at the spot and entered upon a line of investigation which I can only think was irregular. He appears to have made a large number of personal enquiries. He does not seem to me so far as I am aware and so far as appears on the records before me to have made any notes or kept any record of this evidence. There appears, so far as I know, to have been no sort of cross-examination on the part of either party and in short the enquiry or hearing'' which was made, was not conducted in a judicial manner but merely so far as I can understand, as a kind of personal investigation. At any rate there was nothing done which was required to be done under the procedure which is laid down for the conduct of any enquiry of a judicial nature.

Now, there is no doubt that the Magistrate took a very serious view of the position. He gives, in his order sheet of the 30th March, a long account of the enquiry which he made; and he, apparently, came to the conclusion that what has been said in the petition of the applicant of the 27th February was not altogether true. In fact he remarks upon it as being false. I have pointed out that there had been, so far as I can see, no sort of judicial enquiry; but, notwithstanding this, the Magistrate thereupon ordered the applicant to show cause on the 4th April why he should not be prosecuted for an offence against the provisions of S. 182 of the Indian Penal Code, that is to say, for having given, by his petition false information to the Magistrate himself, thereby causing him to issue the notice under S. 144 forbidding the second party from coming to the khalihan and thereby using his lawful power to the injury of these persons. I must at once point out here that it appears to me that his decision which was come to by the Magistrate was based upon an arbitrary opinion and not upon any judicial enquiry or investigation. If he had made a local inspection in a proceeding under the provisions of S. 144 and had conducted the enquiry at the place, (as it appears it was his intention so to do) under the provision of that section in a judicial manner, that is to say by properly recording the evidence of the parties giving opportunities for cross-examination and the like and at the end of his investigation, had come to the conclusion that the applicant''s petition of the 27th February was of such a false character that it ought to form the subject matter of a prosecution under the provisions of S. 182 of the Indian Penal Code, it would then undoubtedly have been perfectly open for him under the provisions of S. 476 of the Criminal Procedure Code to have sent the case for enquiry to another Magistrate and even to have sent the accused to such Magistrate in custody. But in view of the nature of the investigation in which the Magistrate engaged, it does not seem to me that he had any jurisdiction to do what he did at that time In addition to this I should also point out that he remanded the applicant in custody in default of the bail for Rs. 500/-.

The next thing which happened was that on the 4th April the applicant showed cause why he should not be prosecuted under S. 182 of the Indian Penal Code. The cause so far as I can see appears to have been contained in a petition which was dated 4th April. This petition appears to comprise a somewhat pathetic attempt to show to the Magistrate that the Magistrate''s procedure had been irregular. He points out that he had had no chance to cross examine these persons upon whose unrecorded statements the Magistrate had come to the conclusion that the applicant''s petition of the 27th February was false He re-iterated the story which he had told before and hoped that the matter would be treated as a civil dispute. No notice, however, was taken of this petition by the Magistrate who in his order-sheet simply remarks. "The cause shown is not satisfactory. I have held a full and careful local enquiry. Even witnesses named by applicant as independent supported the opposite party. I am fully satisfied that the allegations in his petition dated the 27th February were false and malicious I therefore under S. 476 Criminal P.C. sanction his prosecution under S. 182 of the Indian Penal Code and send the case to Babu R.N. Pande for disposal." This is the order against which an application was made to this Court and in connection with which a rule was granted on the 16th ultimo by Mr. Justice Mullick and Mr. Justice Macpherson. I do not consider that the circumstances under which the Magistrate came to the conclusion that he was justified in thinking that the petition made by the applicant was as he says false and malicious, were circumstances under which he could judicially come to any such opinion. A private or a personal enquiry conducted on non-judicial lines without the recording of any evidence, without cross-examination and based upon such'' un-recorded and irregular, methods of taking testimony do net in my opinion justify any presumption such as that to which the Magistrate, came. The proceeding of the 30th March appears to me to have been very irregular. I have already pointed out what he should have done had he contemplated taking any such steps to sanction a prosecution of this application.

Now it is pointed out that at present no final order under S. 144 of the Criminal Procedure Code has been passed at all; the order, however, for the sanction of the prosecution of the 3rd April will be quashed.

With regard to the necessity for any order under S. 144 it is no part of my duty to direct that any proceedings should take place thereunder. As to whether it is necessary that such proceedings should take place or not depends upon circumstances connected with an apprehension of a breach of the peace as to which I am in no way concerned. But assuming that the condition still remains which existed before, I take it that these proceedings under S. 144 should be carried out to their completion; but they should be carried out in accordance with law and not in such a -manner as they were attempted to be carried out hitherto. If as a result of such proceedings, or of another proceeding, properly conducted it is thought that the applicant should be prosecuted for any kind of offence the matter can easily be arranged. But sanction must not be given to prosecute a person merely because an officer without proper judicial investigation or enquiry is of opinion that such person ought to be prosecuted for some offence.