Harbans Narain Singh and Others vs Mohammad Sayeed and Others

Macphbrson, J.—This is an application against an order dated 14th January 1925, of the Sub-Divisional Magistrate, of Monghyr.

On 19th November 1923, an order u/s 144, Criminal P.C., was made absolute by a Deputy Magistrate of Monghyr against the petitioner, Harbans Narain Singh and also the opposite party Rita Singh with the result that the opposite party Muhammad Ishaq was directed to be retained in possession of an area of 30 bighas which was the land in dispute between the parties or a part of it. The Magistrate added that if the parties to the proceeding created trouble after the expiry of two months, action u/s 107 or Section 145, Criminal P.C., would be taken Harbans Narain moved the High Court and on 1st February 1924, this Court set aside the order on the view that it was not one which could be properly made u/s 144. The learned Judge further directed as follows:

If there is any apprehension of a breach of the peace it will be open to the Magistrate to take proper proceedings according to law.

On 2nd December 1924, the police submitted a report recommending action u/s 144 followed by proceedings u/s 145 in respect of a plot of 40 bighas (out of a large area of about 163 bighas) which apparently includes the area of 30 bighas already mentioned, and showing the petitioners as first party, Muhammad Saiyid and others as second party. Fazal Karim and Ishaq, already mentioned as third party and Rita Singh as fourth party. On that report the Sub-Divisional Magistrate passed the following order on 9th December:

"All parties should appear before me with their documentary evidence on 20th December. Meantime they should not commit a breach of the peace by going to the lands in dispute,

On 12th January he "heard the lawyers for the first three parties" and two days later passed the order of which revision is sought, It runs as follows:

"The first party claim the land as bakast, but there is no documentary evidence in support of their claim that this particular land is bakast. The second party claimed settlement of 40 bighas of the disputed land from the previous maliks and produced rent receipts in support of their claim. He was also sued by the late maliks of 12-annas, etc., share of arrears of rent. The third party claims 30 bighas out of the disputed land as his raiyati but the rent receipts filed do not seem to be reliable. The fourth party claim to be sub-tenants of the second.

I consider that the second party are in possession of 40 bighas of the disputed land. The others are forbidden not (sic) to interfere with their possession. If they do, they will be proceeded against u/s 107, Criminal P.C. They had better go to the civil Court if they have any rights."

Mr. K.B. Dutt on behalf of the petitioners contends that the order is a judicial one and that this Court has jurisdiction to set it aside. On behalf of the opposite party it is suggested that the order is a judicial one u/s 144 which should not be set aside as it has spent its force.

In his explanation the Sub-Divisional Magistrate claims that his order was an executive one, and states that he thought it necessary before taking action under the Criminal Procedure Code, to hear the parties but that after hearing them he did not consider that any action under the Code was necessary. Some support for the view that the order is an executive one might be derived from the fact that in the copy of the order filed with the petition the designation "S.D.O." is appended to the initials of the Magistrate but those letters do not appear in the original.

If the order was passed by him as a Court, the Magistrate manifestly could not avoid responsibility now by saying that he passed the order in an executive capacity. It is however difficult to say what the order really is. It does not indeed purport to be passed u/s 144 or Section 145 and the Sub-Divisional Magistrate apparently desired to avoid issuing orders u/s 144 because this Court had set aside a similar order, and also to avoid taking proceedings u/s 145 to which the order of this Court pointed, which besides being troublesome too often lead to nothing, as they have to be set aside on technical grounds. But actually the order passed differs little from the previous order which was set aside by this Court (except in the fact that it does not purport to be made u/s 144) and that order was set aside on the ground that though passed u/s 144 it was actually one contemplated by Section 145 which was passed without observing the formalities indispensable under the provision. It is difficult to see that the order now challenged is anything else than a thinly disguised order u/s 145. In substance, though not in form, the Sub Divisional Magistrate took action under the Criminal Procedure Code and once again passed an order u/s 145. He decided a question of disputed possession and forbade interference with the possession of the party in whose favour he decided, directing the opposite parties to the civil Court. He could not do this executively. The mere fact that he proposed to enforce his order by action u/s 107, Criminal P.C., instead of by a prosecution u/s 188, of the Penal Code, hardly affects the matter. A similar reference to Section 107 had been made in the illegal order u/s 144 which this Court had set aside. I am constrained to the conclusion that the Sub-Divisional Magistrate acted judicially and passed without jurisdiction, an order which he could only pass u/s 145.

The Rule is made absolute and the order of 14th January is set aside. It is of course open to the Magistrate to take any proceedings to keep the peace which are warranted by law, but he must face the position squarely and realize that an order contemplated by Section 145 cannot be passed by a short cut such as was taken in the present instance.