Hansraj Prasad Singh and others vs Abdul Jabbar and another

Rowland, J.—In this case there are five petitioners against whom the Subdivisional Officer of Sitamarhi has passed an order under S. 144, Criminal P.C., restraining them from holding a hat on Tuesdays and Saturdays for a period of two months beginning on 14th February 1935. The petitioners moved the District Magistrate of Muzaffarpur to reverse the above order, but by the time that the Magistrate heard the application the order bad by lapse of time spent its force, and the Magistrate declined to interfere after examining the facts and coming to the conclusion that the order originally passed was a proper order. The facts are that one Abdul Jabbar, the opposite party in these proceedings, is the proprietor of village Gauri in which a bazar called Gauri Hat has been held for some time on Tuesdays and Saturdays. Recently the petitioner 1 Hansraj has started a similar hat to be held in village Bahurar, about two or three miles from Gauri. It was alleged by the opposite party that the petitioner 1 had done this out of spite in order to damage the opposite party''s hat at Gauri. It was farther alleged that the other petitioners, servants or otherwise connected with petitioner 1 have been dissuading shopkeepers and others from attending the opposite party''s hat at Gauri by means of threats, abuses and religious curses.

The first proceedings that were taken in the matter consisted of a preliminary notice issued in December 1934, to petitioner 1 only. On that notice petitioner 1 appeared, and on 4th January 1935 gave an undertaking that he would not enter the hat of the opposite party, nor do any wrongful act. On this undertaking the rule was discharged. Apparently petitioner 1 continued to hold his hat at Bahurar. On 30th January 1935 the Sub-Inspector of Gauri reported for action against all the petitioners on allegations of which I have given a summary above. A conditional order was passed by the Magistrate on 14th February 1935 which the Magistrate after hearing the cause shown by the petitioners made absolute on 13th April 1935. The order has already spent its force and the rule appears to have been issued as in Saligram Singh v. Baijnath Singh, 1984 Pat 104 = 150 IC 118 = 1934 Or C 198 = 35 Cr LJ 1057 = 14 PLT 740, with a view to examining the legality or otherwise of the order. In the case just cited, the order passed, although spent by lapse of time before the hearing of the rule was set aside, Khaja Muhammad Noor, J., observing that the mere existence of rivalry between two competitors would by itself be no ground for using S. 144 to restrain a newcomer

unless he is doing or is likely to do any wrongful act and likely to lead to a breach of the peace. If one or both rivals are committing wrongful acts, the beat course will be to bind down the wrongdoer under S. 107, Criminal P.C.

The order of the Court below was set aside on the ground that no wrongful act of the petitioner had been alleged or found. In the course of the judgment some decisions of the Calcutta High Court were referred to on which Mr. Jamuar has rested a contention that it is beyond the jurisdiction of the Magistrate to issue an injunction not to do a lawful act upon a man''s own property. Now the Patna decision in Saligram Singh v. Baijnath Singh, 1984 Pat 104 = 150 IC 118 = 1934 Or C 198 = 35 Cr LJ 1057 = 14 PLT 740 is not in itself an authority for any such proposition. Indeed it was said in the judgment of that case:

No doubt the learned Magistrate had full jurisdiction and power to pass the order complained of; but in my opinion, the order which is more or less of a permanent nature was unjustified under the circumstances of the case

But in the course of the judgment reference is made to an earlier decision of the Calcutta High Court which contains an observation which, if it is a correct statement of the law, materially supports the contention of Mr. Jamuar. That is the decision in Rakhal Das Sinha v. Emperor, (1912) 19 CWN 248 = 15 IC 655 = 13 Or LJ 511. In that case which was heard by a Bench of two Judges it was said:

Directing a man not to use his property in a lawful manner (for the establishment of a hat is a perfectly lawful act) cannot in our opinion, come within the purview of this section.

And again it is said:

An injunction cannot be issued not to do a lawful act upon a man''s own property.

Unfortunately the Judges who decided this case did not apparently have placed before them the Pull Bench decision of the same Court in Bykunt Ram Shaha v. Meajan, (1872) 18 WR 47 Cr = 10 Reng LR 434 (FB). Previous to this Full Bench decision which was given in 1872 there were conflicting decisions of the Calcutta High Court as to whether a Magistrate could legally issue an order prohibiting a land-holder from holding a hat on a particular spot in his own estate on particular days on the ground that such an order is likely to prevent a riot or affray. The decision of the Full Bench which was pronounced by Couch, C.J., was that a Magistrate had power to pass such an order. It was observed:

It has been argued that the powers vested in the Magistrate by S. 62 (of Act 25 of 1861) must be confined to those acts and modes of enjoyment of property only which are in themselves Unlawful, and that as there is nothing inherently illegal in a man holding a hat on his own land on any particular day he chooses, the order passed by the Magistrate in this case must be set aside as void for want of power.

The argument was rejected by the Full Bench on the ground that:

Not only is this restricted construction not supported by the actual words of the section, but its adoption might in many cases lead to the most dangerous consequences.

The judgment goes on to refer to circumstances which might exist such as existence of hostility between owners of rival hats or preparations made by them for the commission of breach of the peace which might render it absolutely necessary to exercise the discretion vested in the Magistrate for the preservation of the public tranquility. Therefore the objection to the Magistrate''s order on the ground of want of jurisdiction must fail, for I am bound to follow the decision of the Full Bench which so far as I know has never been reversed by any Bench of equal authority.

That a Magistrate''s power extends to the passing of an order restraining individuals from doing acts perfectly lawful in themselves has also been clearly held by the Madras High Court in Muthialu Chetti v. Bapun Saib, (1878) 2 Mad 140, a decision approved by a Full Bench of the same Court in Sundram Chetti v. Queen-Empress, (1883) 6 Mad 203 (FB).

Coming to the propriety of the order, the Magistrate who passed it had before him the report of a Police Officer to the effect that the petitioners were using intimidation and other methods to prevent shop-keepers and others attending the hat of the opposite party. There was on the other hand a report of a junior Magistrate to the effect that in his opinion such incidents were either not true or greatly exaggerated. It is perhaps a pity that neither the Sub-Divisional Officer of Sitamarhi nor the District Magistrate of Muzaffarpur took any steps to cause evidence to be recorded with a view to proving which view of the facts corresponded with the truth. Such evidence could appropriately have been taken in proceedings under. S. 107, Criminal P.C., which could have been drawn against both parties to the dispute, bonds for keeping the peace being eventually required from the party found on evidence to be in the wrong, or, if necessary, from both parties to the dispute. The desirability of proceedings under S. 107 rather than under S. 144, Criminal P.C., was pointed out in Satish Chandra Roy v. Emperor, (1907) 11 OWN 79 = 4 Cr LJ 433. The real disadvantage of passing an order under S. 144 without going into the merits of the dispute is that on the expiry of two mouths which is the limit of the duration of such an order the whole dispute is left to break out again. The party who on the previous occasion was successful in getting a S. 144 order in his favour will probably try to use the order to prejudice the mind of the Court against his opponent in the subsequent proceedings; but it has been repeatedly emphasized that such an order is no evidence of right or of possession antecedent to the date of the order. Therefore to pass an order under S. 144 and to leave it as if that order disposed of the dispute finally is merely postponing trouble and inviting its recurrence in an aggravated and more complicated form at a later date.

In Blong v. Emperor, 1924 Pat 767 = 82 IC 42 = 26 Or LJ 1178 = 6 PLT 130 Kulwant Sahay, J., observed:

The object of S. 144 is to enable a Magistrate in cases of emergency to make an immediate order for the purpose of preventing an imminent breach of the peace; but it is not intended to relieve him of the duty of making a proper enquiry in to the circumstances which make it likely that such breach of the peace will occur.

I would draw the attention of the District Magistrate and the Sub-Divisional Officer to these observations. Kulwant Sahay, J., in the judgment said further:

If it is found that a man is doing that which the is legally entitled to do and that his neighbour chooses to take offence thereat and to create a disturbance in consequence, it is clear that the duty of the Magistrate is not to continue to deprive the first of the exercise of his legal right but to restrain the second from illegally interfering with that exercise of legal rights.

The difficulty, in the present case, is to say which of the parties to this disputed the party who is creating a disturbance in consequence of his opponent doing that which he is legally entitled to do. The question whether it is Abdul, Jabbar who is making trouble because of Hansraj doing that which he is legally entitled to do, or Hansraj who is creating a disturbance by interfering with Jabbar in the holding of a hat at Gauri which he is legally entitled to do was a matter fit to be decided on evidence and fit to be followed up by an order under S. 107 restraining the party in fault, which order would have been of some permanent value and would not have left the dispute likely to recur in an aggravated form after a few weeks. The order having spent its force by lapse of time, it is not the usual practice of this Court to interfere with an order which it was within the powers of the Magistrate to pass, unless for very special reasons; and in the case before me, there would have been no fault to find with the order if at the same time proceedings under S. 107 had been drawn with a view to dealing with the matter properly and finally on sworn evidence.

In the result the Rule is discharged.