Harihar Singh and Others vs Emperor

Macpherson, J.—This rule has been issued on an application which purports to be a petition u/s 526, Criminal P.C., though the last of the "grounds" is that the proceedings before the Magistrate should be quashed in view of the admission on behalf of the prosecution witnesses that there are no crops standing on the fields, all having been out away by the first petitioner.

Mr. Akbari who appears for the petitioners, states, that, in point of fact, the rule was issued not on the question of transfer but on the point whether in view of the decision in Saddique and Others Vs. Sheikh Mohid and Others, , which follows the decision in Shama Charan and Others Vs. Emperor, , the proceedings under 8. 107, Criminal P.C., should not be quashed, leaving it open, presumably, to take proceedings u/s 145 of the Code. Mr. Akbari has now argued both points and without calling upon Mr. Manuk who is for the opposite party, I am satisfied that the rule must be discharged.

The facts are briefly these: Following on a champertous transaction of 27th February 1932, between petitioner 1 and Aziz, the son of a former owner, Umatul Fatma, who had mortgaged the mukarrari villages Nadiwan and Nanian in Gurwa police station, and Karmain in police station Sherghati in favour of the father of Upendranath Banarji who and whose successors had by virtue of various Court sales thereafter become mukarraridars and were in possession; petitioner 1, his transferor and another instituted title Suit No. 9 of 1932, in the Court of the Subordinate Judge of Gaya on 21st February 1932, and promptly began to interfere with the possession of Upendranath Banarji with a view to preparing evidence for the suit, so that about 20th March 1932, the police of both stations requested that action u/s 144, Criminal P.C., be taken against the petitioners.

The Sub-divisional Magistrate made the order absolute on 20th May 1932, holding that the claim of the petitioners was a mere pretence and the superior Courts declined to interfere. Meantime, on 17th May 1932, the Sub-Inspector of Gurwa reported for action u/s 107 against the petitioners and the Subdivisional Magistrate drew up proceedings, which however failed, the view of the Magistrate being that the dakhaldehani papers not being proved the present possession would seam to be with the petitioners.

The District Magistrate differed as to possession and directed that if the opposite party should try to disturb Banarji''s possession in face of the orders u/s 144, the local police should draw up proceedings u/s 107 on further evidence of likelihood of a breach of the peace. An application against this order was dismissed in the High Court with an observation that the remark of the District Magistrate as to possession was not necessary for the purposes of his decision.

Next the Sub-Inspector of Sherghati asked for proceedings u/s 144 on both parties, but the Sub-divisional Magistrate on 24th February 1933, made the order absolute against the petitioners.

On 3rd March the District Magistrate rejected a motion against this order with an observation that the dispute was not bona fide and the petitioners moved this Court against the order u/s 147 and obtained a rule

on the ground that the matter should have been dealt with not u/s 144 but u/s 145, Criminal P.C.

In discharging the rule on 26th April, I observed that

proceedings u/s 145 now would be futile since they could not possibly be brought to a conclusion in all the circumstances of the present case, before the parties will have a definite decision one way or the other from the civil Court towards the end of June,

and proceeded:

It therefore does not matter in this case whether Section 145 would have been the more appropriate method of setting the dispute between the parties which was stated by the police whose view was accepted by the Magistrate, to require a speedy remedy such as is afforded by Section 144. All things considered I certainly see no reason to hold that Section 144 was not a proper method of dealing with the emergency when it came before the Magistrate in January last. It is always enough that the Magistrate adopts any proper method to meet the emergency if there happen to be several methods to choose from: his choice is not to be considered in the light of the fact that at a later stage when the emergency can be viewed on a different basis, another method may be adjudged to have been more proper or the most proper or rather the most satisfactory method in the circumstances.

I am satisfied that at the present stage proceedings u/s 145 would be entirely inexpedient. The District Magistrate must maintain the peace of his district as between these warring parties until the forthcoming decision of the civil Court, by the means at his disposal which he shall adjudge most appropriate to and most effective in the circumstances. The rule is accordingly discharged.

In spite of the order u/s 144 of 14th February and a further order of 1st March to depute a constable to Karmain to help the first party to harvest the crops and submit a report u/s 107, if there should be any likelihood of a breach of the peace, the petitioners from the middle of March began cutting the crops, and in a report of 8th April mentioning these facts and stating that there was no likelihood of the trouble subsiding he asked for proceedings u/s 144 at once against the petitioners and submitted a report u/s 107. On this report the Subdivisional Magistrate on 11th April drew up proceedings u/s 107. Four members of the petitioners'' party who carried away the crops were sent up u/s 379, I.P.C., and their convictions have been upheld on appeal.

In support of the application for transfer, Mr. Akbari contended that the present Subdivisional Magistrate Mr. Mitra having passed the orders of 1st March and been otherwise connected with other proceedings ought not to try this case. But while suggesting that the orders of 1st March had been passed by Mr. Mitra, he failed to produce any papers to establish the fact, and I find from the Quarterly Civil List that Mr. Mitra actually joined at Gaya on 3rd March. Again the case u/s 379 was started in view of the order u/s 144 and was triad by a Magistrate other than Mr. Mitra. No objection was taken to Mr. Mitra dealing with these proceedings u/s 107 until l0th August.

The real ground of objection is that Mr. Mitra failed to enforce the attendance of Upendranath Banarji when the petitioners wished to have him first as a Court witness and then as a defence witness. At first they failed to pay the process-fee. When they did so and Upendranath Banarji was summoned, an adequate medical certificate was filed on his behalf to the effect that he was not in a fit state to give evidence either in Court or at his residence. It may be pointed out that precisely the same course was adopted in the trial u/s 379. The petitioners also called on Upendranath Banarji to bring his papers for thirty years and the Magistrate directed him to bring three years papers. In fact however the village papers had been already filed in the civil suit. The petitioners have also been prolonging the civil suit in order to harass the defendants. It is manifest that there is no ground whatever for the transfer of the case from the file of the Subdivisional Magistrate.

As regards the quashing of the proceedings, it is admitted that the present case in no way differs from the case above referred to which I determined on 26th April last. All that was said there applies to the present case. The decision in Saddique and Others Vs. Sheikh Mohid and Others, is adduced in support of the view that the proceedings should be quashed. Now in the first place, that case cams up at an early stage and not after many hearings and when only the defence evidence was to be recorded. Again it proceeded in a special degree on its own facts and the Court remarked:

It will therefore be necessary before proceedings u/s 107, Criminal P.C., can be properly instituted against the petitioners to ascertain which of the parties to this dispute is in possession of the land, which can more conveniently be done by proceedings u/s 145.

I am not prepared to admit that convenience is necessarily a good criterion and, still less, a general criterion. This Court should be astute not to interfere with the exercise of his discretion by the District Magistrate in respect of which of the powers conferred on him by statute enabling him to ensure the peace of his district, he should exercise in a particular case. He is necessarily in a better position to say which of those powers is called for by the situation confronting him at the crucial moment. It is enough that the action which he is taking is not illegal or definitely improper.

In the present instance it can certainly not be predicted that action u/s 107 is not proper and that is what would be necessary to justify interference by this Court since it is clear that such action is legal. In these circumstances, the Court ought not to quash the proceedings u/s 107 even if it should be possible to predicate now (as opposed to the date of initiation months ago) that a proceeding u/s 145 might eventually give better results.

In point of fact however having regard to the course of events in the village and in the Courts, proceedings u/s 145 at this stage would clearly be inexpedient. Indeed even if the proceedings were u/s 145 the petitioners would have equally tried to wriggle out of them on some ground or other, as it is their policy not to come to close quarters at an early date. The application is entirely without merit and the rule is discharged. The learned Subdivisional Magistrate should proceed to finish these long pending proceedings with all reasonable expedition. Application may well be made by the defendants for immediate trial of the civil suit and if the file at Gaya is congested, for deputation of another Subordinate Judge.