Gajo Chaudhry and others vs Debi Chaudhry and another

Kulwant Sahay, J.—This is an application for revision of an order dated the 3rd February 1923 passed by the Sub-Divisional Officer of Monghyr whereby he ordered the issue of summonses against the petitioners under Ss. 379 and 147 Indian Penal Code. The petitioners pray that under the circumstances set out in their petition the learned Sub-Divisional Officer''s order should be set aside as being illegal, or, in any event, the proceedings should be quashed.

In order to understand the circumstances under which the order sought to be set aside was passed, it is necessary to state shortly the previous history of the case.

There are three plots of land in village Rahimpur, lying contiguous to each other from east to west. The two plots on the east and west admittedly belong to the petitioners. The dispute relates to the middle plot measuring about 15 bighas, which is claimed by the petitioners as being their holding while it is claimed by Debi Chaudhury and others as belonging to them. A dispute arose between the parties as regards the possession of the middle plot and in the year 1920 a case of rioting was started against Debi Chaudhury and others on the complaint of Gajo Chaudhry one of the petitioners. In that case the Deputy Magistrate convicted Debi Chaudhury and others, sometime in January or February 1922, and in his judgment the Deputy Magistrate found that the petitioner Gajo Chaudhury was in possession of the disputed middle plot. There was an appeal by Debi Chaudhury and others which was heard by the Sessions Judge of Monghyr and the learned Judge upheld the conviction for rioting; but in the course of his judgment he was pleased to observe that Debi Chaudhury and others were really in possession of the middle plot and he maintained the conviction on the ground that the accused persons in that case had exceeded their right of private defence inasmuch a they had chased the complainant of that case and assaulted him somewhere outside the disputed land. An application for revision was filed by Debi Chaudhury and others to the High Court which was dismissed. It is said, however, that the High Court remarked in its judgment that the question of possession of the middle plot did not arise in the case.

Subsequently sometime in August 1922 fresh disputes cropped up between the parties as regards the possession of the middle plot, and proceedings u/s 145 of the Criminal Procedure Code were initiated, but as it was found that the land had gone under water the said proceedings were dropped. Again in November 1922 proceedings u/s 144 of the Criminal Procedure Code were initiated wherein Debi Chaudhury and others were the first party and the petitioners were the second party. Notice was issued upon them to show cause why an order u/s 144 should not be passed against them. The petitioner Gajo Chaudhury thereupon filed a petition on 28th November'' 1922 showing cause as to why an order u/s 144 Criminal Procedure Code should not be passed against him, and, in that petition he stated that he was in possession of the land and he had cultivated the land and grown crops thereon which he cut and removed on the 17th of March 1922. Thereupon without any complaint by any one, simply on the statement in the petition of Gajo Chaudhury that he had cut and removed the crops, the learned Sub Divisional Magistrate made an order on the 29th November 1922 in which he stated that the petitioners had no right to reap the crops on the 17th of March 1922 as both the Sessions Judge and the High Court had found in the rioting case that the petitioners were not in possession of the disputed land, nor had the land been settled with them and he recorded the following order in the order-sheet " I therefore take cognizance of the offences committed by him (i.e. Gajo Chaudhury) under sections 379/109 and 447/109 Indian Penal Code in 1921 and 1922, under the provisions of section 190(c) Criminal Procedure Code and remand him to Hajat. I send the file to the Sub Inspector Khagaria for investigation". The result was that the petitioner Gajo Chaudhury was at once arrested ani taken to the Hajat. He later on applied for bail on the same date but this was rejected. Bail was, however, subsequently allowed by the learned Sessions Judge. On the 21st of January, 1923 final report of the Police was received by the learned Magistrate and he recorded the following order in the order sheet of that date:- "Final report received. Enter false, mistake of law. Ss. 379/109, 447/109 I.P.C." On the 3rd of February 1923 Debi Chaudhury filed an application before the Sub Divisional Magistrate for revival of the case u/s 379/109 and 447/109 I.P.C. and thereupon the learned Sub Divisional Magistrate made the following order on that date "Petition filed by Debi Chaudhury for continuing the case. His Vakil states orally that he can prove that Debi Dhaudhury was in possession till 17-3-22, on which date accused had the crop cut. The Sub Inspector''s report shows that he considered at that time the evidence of possession was equally balanced. As the title is with the complainant and he has been proved to have been in possession on 13-10-20, I consider he must in fairness be given an opportunity of proving his case. Issue notice to accused Gajo''s bailor to produce him on 19-2. Summon Phulten. Bhattu and Shibteyai Singh for that date u/s 379 and 147 I.P.C." It is against this last order of the learned Sub-Divisional Magistrate that the present application for revision has been filed.

The learned Vakil for the petitioners contends firstly that the learned Magistrate having by his order of the 21st of January found the case to be false he has acted illegally in taking fresh action and reviving the case. Secondly it is contended that the learned Magistrate had no jurisdiction to take action as on a complaint inasmuch as there was no complaint before him, and he did not as a matter of fact proceed u/s 190(a) of the Criminal Procedure Code as there was no examination of the complainant upon oath u/s 200 of the Code. Thirdly, it is contended that in any event it is a fit case in which the proceedings should be quashed.

In my opinion, apart from the legal objections taken by the petitioners, having regard to the previous history of the case, it is not proper that the present proceedings should be continued. The finding of the Deputy Magistrate in the rioting case was that the petitioners were in possession of the disputed plot of land. That finding was not upset by the Sessions Judge until the 18th of March 1932 and the crops were removed by the petitioners on the 17th of March 1922 i.e. at a time when the finding of the Deputy Magistrate was still subsisting and had not been upset on appeal and therefore there was no ground for holding that they removed the crops with any dishonest motive. Secondly, it is stated by the learned Vakil for the petitioners that the High Court in revising the order of the learned Sessions Judge had held that the question of possession did not arise in the case. The learned Assistant Government Advocate does not challenge the correctness of this statement, but the Sub-Divisional Magistrate proceeds on the assumption that the High Court bad confirmed the finding of the Sessions Judge as regards possession. I have not got a copy of the order of the High Court before me, but in any event it cannot be said that on the 17th of March 1922 the petitioners had no justification for removing the crops which they allege to have been grown by them. Then again the learned Magistrate took cognizance of the case u/s 190(c) of the Code of Criminal Procedure upon information received by him in the course of the proceeding u/s 144 of the Code. This information was received from the petition of objection filed by the petitioners in the proceeding u/s 144 in showing cause against the order under the said section. The petitioners stated as a ground that no order u/s 144 should be passed against them; that they had been in possession of the land and had removed the crops on 17th March 1922. There was no complaint before the Magistrate and there was no justification for his coming to the conclusion that the petitioners had committed any offence of which he ought to take cognizance u/s 190(c) of the Code. Again when the matter was referred to the Police for enquiry the Police made an enquiry and submitted a report in fovour of the petitioners. The Magistrate was apparently satisfied with that report and he ordered the case to be entered as "false, mistake of law". Having regard to the fact that the alleged offence took place in March 1922 after which there were fresh proceedings under sections 145 and 144 of the Criminal Procedure Code and that no complaint of that was made by Debi Chaudhury at any time from the 17th March 1922 up to the 3rd February 1923 I am clearly of opinion that it is improper to revive the proceedings upon the petition of Debi Chaudhury filed on the 3rd February 1923.

As regards the first objection of the learned Vakil for the petitioners that the learned Magistrate had no jurisdiction to revive the proceedings after his order of the 21st of January 1923 his argument is that the order of the 21st January 1923 had the effect of finally disposing of the case and that order could not be cancelled by the learned Magistrate under any provision of the Code. He relies upon the ease of Tarini Charan Chowdhury v. Amulya Ratan Roy [1893] 20 Cal. 867 where their Lordships observed that unless it can be shown that there is a legislative enactment giving a power to that effect, cessation by the order of the Magistrate of any Criminal Proceedings must, until that order is set aside, operate not only as staying the proceedings, but destroying them. The learned Assistant Government Advocate for the Crown argues that the order of the 21st of January 1923 was merely an executive order and it was not a judicial order disposing of the case, and he relies upon the observations of Jwala Prasad J. in the case of Sir Narayan Singh v. Emperor 1922 Pat. 97: 3 P.L.T. 239: 23 Cr. L.J. 371: 67 I.C. 195. His Lordship in that case observed that an entry such as that made in that case, namely, "enter true sections 384/114 I.P.C." "was an entry which ought not to have found a place in the judgment. The judgment in that case was entirely in favour of the accused but after disposing of all the arguments and considering all the facts and the evidence in the case and coming to the conclusion that the accused in that case was not guilty of the offence charged, the learned Magistrate had made an entry at the end of the judgment "enter true sections 384/114 I.P.C." and his Lordship held that such an entry ought not to have found a place in the judgment. Under the rules contained in the Police Manual such an entry has to be made in the register prescribed by paragraph 314 Chapter XIII of the Police Manual and his Lordship ordered the entry to be expunged from the judgment. In the course of his judgment his Lordship observed that such an entry had been interpreted by certain authorities as an entry of purely executive character and he gave that as a reason for holding that if it was an entry of an executive character, it ought not to have found place in the judgment of the Court. That case is no authority for the proposition that such an order as that passed by the Sub Divisional Magistrate in the present case on the 21st January 1923 was an executive order. It was an order finally disposing of the case and to use the expressions of their Lordships of the Calcutta High Court in the case of Tarini Charan Chowdhury [1893] 20 Cal. 867 just cited, it had the effect of "destroying the proceedings". If that is so, then u/s 369 of the Code of Criminal Procedure the learned Magistrate had no jurisdiction to alter or review that order, and the order of the 3rd of February 1923 must in this view of the case be held to be illegal.

As regards the second objection of the learned Vakil for the petitioners, I am of opinion that that objection is also well founded. If it is argued that the proceedings were initiated on a complaint made by Debi Chaudhury then the provisions of section 200 of the Code of Criminal Procedure have not been complied with; in fact the petition filed on the 3rd of February cannot'' be regarded as a complaint and the learned Magistrate himself did not treat it as a ''complaint'' but merely as "an application for continuing the case."

For the reasons given above I am of opinion that no fresh action ought to be taken against the petitioners and the proceedings initiated by the order of the 3rd of February 1923 must be quashed.