In Re: Narendra Nath Jha

Manohar Lall, J.—This is an application on behalf of Babu Narendra Nath Jha asking for the quashing of the proceedings now pending against him under the provisions of Section 110, Clauses (d) and (f), Criminal P.C.; there is also an alternative prayer for the transfer of these proceedings from the file of the learned Magistrate, Maulvi Ahmad Mohammad of Muzaffarpur. It is necessary to state the facts in some detail in order to appreciate how the matter has come up to this Court at this stage. It appears that on 15th November 1937, a petition in Hindi was received by the District Magistrate of Muzaffarpur apparently signed or thumb, marked by 29 tenants of village Bara in which the tenants complained of a large number of grievances against the petitioner; the chief grievances being that they were not given any receipts for payments of rents in kind although they used to receive such receipts in the time of the Court of Wards and from the other predecessors-in-interest of the petitioner. There were also some allegations regarding the illegal realizations of abwabs, tahrir of the amlas, begaris and forcible realization of rent by the zamindar by resorting to illegal and oppressive means. It was also, alleged that oil and ghee and other articles were being realized by force or the tenants were forced to sell these. articles at a very low price. These are some of the principal allegations which I have noticed on hearing the petition read out in open Court before me.

The learned District Magistrate of Muzaffarpur, having received this petition, forwarded it to the Sub-Divisional Officer of Sitamarhi who received it on some date before 3rd December 1937. On 3rd December 1937, it appears that some of the tenants, who had signed the petition or thumb-marked it, as well as the petitioner were all present before the Sub-Divisional Officer of Sitamarhi, Mr. A.S. Khan. This officer having heard the applicants was impressed by the fact that the allegations were being made openly in the face of the zamindar, and naturally suspected that there was some truth in these allegations. But nevertheless he did not think it desirable to start proceedings at once, and, in my opinion, adopted the proper course of having the matter investigated by the Divisional Inspector of Police.

In fact the petition itself suggested that an inquiry should be made into the allegations in the petition either by the learned District Magistrate himself or by some other officer of a high standing. On receipt of the order of the Sub-Divisional Officer, two Sub-Inspectors of Police made investigations, which, I am told, was supervised by the Divisional Inspector of Police. One Sub-Inspector''s report. is at p. 10 of the paper-book in which he says that as a result of the local inquiry into the petition which he made he was satisfied that the real dispute between the landlord and the tenants was of a civil nature and that the tenants were anxious that the petitioner should settle all the baksht lands in the village, about 40 bighas in area, on cash rental with the tenants; but as the malik was not willing to do so, the tenants were displeased with him and hence had raked up the alleged grievances of several years past. This report of the Sub-Inspector is dated 24th January 1938. The Divisional Inspector submitted his report on the next day, i.e. 25th January 1938. His report is in greater detail but he comes to very nearly the same conclusions as the Sub-Inspector.

The important fact which emerges from the report of the Divisional Inspector is that these raiyats had made similar allegations from time to time before the previous Sub-Divisional Officers, but these were not taken serious notice of as the result of inquiries made under orders of the then Sub-Divisional Officers by a number of Sub-Deputy Magistrates. The Divisional Inspector puts his views thus:

I have carefully considered the grievances of the raiyats and they are all of civil nature and the Criminal Court cannot take any step. The different Magistrates who made inquiries in the past had also come to the same conclusions about the allegations of the raiyats made against him (the zamindar) from time to time. The raiyats being combined this year under the instigation of kisan workers have put him in great loss so much so that they have even harvested his paddy which was originally cultivated by Babu N.N. Jha. In my opinion, there is no ingredient for the prosecution of Babu N.N. Jha u/s 110, Criminal P.C. Instead, the raiyats should be warned not 4o interfere with the malik''s legitimate rights. I made the above inquiry along with Sub-Inspector of Sursund and Bella Police Stations.

On receipt of this report from the Divisional Inspector the learned Sub-Divisional Officer drew up proceedings by the following order on 9th February 1938:

Perused Inspector''s report. A protest petition has been filed by tenants who come forward to prove and substantiate the extortionate doings of the zamindar. Draw up proceedings u/s 110, Criminal P.C., and call on him to show cause why he should not be ordered to execute a bond, etc.

I fail to see what further materials there existed at this date which induced the learned Sub-Divisional Officer to draw up proceedings u/s 110, Criminal P.C., which he had refused to do on 3rd December 1937. The positidn seems to be that on 3rd December 1937, the Sub-Divisional Officer was not satisfied with the mere allegations in the petition and therefore he wanted a report from the police. But when the police reported against the allegations made by the tenants in their petition to the District Magistrate, the Sub-Divisional: Officer was faced with the situation that; there was nothing on which he could proceed unless he examined some of the tenants themselves or had some other inquiry made.

A mere petition of protest filed by the tenants simply amounts to this, that, they do not accept the conclusions arrived at by the Police Investigating Officers, but the protest petition is no substitute for any material upon which the proceedings could have been drawn up. It is undoubtedly true, as has been pointed out in a large number of cases, that Magistrates have complete jurisdiction to initiate proceedings u/s 110, Criminal P.C., provided that they are satisfied that there are sufficient materials for doing so, but in each case the superior Court will examine, if necessary, the materials upon which the proceedings are based.

In Nafar Chandra Pal Chowdhury Vs. Emperor, the learned Judges of the Calcutta High Court examined the sufficiency of the materials upon which the proceedings were drawn up against the petitioner. In that case the material upon which proceedings had been drawn up was simply a memorial to his Excellency the Governor, the allegations in which were investigated by the Sub-Divisional Officer who submitted a report purporting those allegations only in part. In the present case, adopting the same procedure, I have examined the materials upon which the learned Sub-Divisional Officer has based his order for drawing up proceedings against Babu N.N. Jha and I am unable to see anything whatsoever upon which the learned Magistrate has drawn up the proceedings which seem to me to be mere verbatim copy of the allegations in the petition of 15th November 1937. No dates are given in the proceedings with respect to the allegations of realization of 11/2 anna per rupee in excess of the actual rental or of Rs. 5 realized from each oil purchaser besides 1/4 seer of oil for patwari and so on. There is not a single individual named who is said to have been oppressed, nor the place nor the date where and when these incidents took place. It is impossible to understand how the accused would be able to defend himself against this general character of his supposed oppressions apparently spread over a large number of years. I am not surprised therefore that the learned District Magistrate who was moved against the order drawing up these proceedings of 9th February 1938, pointed out, while transferring those proceedings to the file of Maulavi Ahmad Mohammad on 11th March 1938, that this officer

would probably do well to make a fresh local inquiry into the allegations of the tenants before continuing with the proceedings.

A little earlier in the same order he stated:

I do however think that when the Sub-Divisional Officer was not prepared to accept the reports of the, Police Officers he should have made a further inquiry himself before drawing up the proceedings.

The petitioner, in the meantime it appears, had moved the learned Sessions Judge against the order drawing up the proceedings; but the learned Judge by his order dated 5th March 1938, refused to interfere upon the ground that he was unable to hold that the learned Magistrate who drew up the proceedings had no jurisdiction to do so. The petitioner did not then move this Court against the order of the learned Judge because he submits that he was satisfied that the learned Magistrate Maulavi Ahmad Mohammad would proceed to make a fresh local inquiry into the allegations of the tenants as directed by his superior officer.

In this, I think, the petitioner adopted a proper attitude. His attitude is not to stifle the inquiry by the Magistrate into the allegations of the tenants, but he insists that it should be conducted in a legal manner and yet not deliberately harassing and oppressive to him. I therefore do not think that there is any justification for the objection raised by the learned Government Pleader that the petitioner is debarred from seeking the aid of this Court when he did not then move this Court immediately against the order of 5th March 1938, passed by the learned Sessions Judge. After the order of 11th March 1938 was passed by the learned District Magistrate, the proceedings were transferred to the learned Magistrate before whom they are now pending. He received the record on 24th March 1938, and his order on that day runs thus:

The District Magistrate is out on tour. I have to discuss with him regarding his order for me to hold an inquiry before continuing with the proceeding.

No occasion should have been allowed) for such a situation to arise and this statement ought never to have found a place in the order sheet. The learned District Magistrate had passed a judicial order and it was the bounden duty of this Magistrate to carry out that order; but, it appears that he, instead of doing that, tried to change the view of the District Magistrate by seeing him personally, as he says he did, on 25th March 1938. The learned Magistrate Maulavi Ahmad Mohammad states in his next order, passed on 25th March 1938:

No inquiry locally before continuing with that proceedings, which is itself an inquiry u/s 110 Criminal P.C., need be made by me, particularly when the proceedings have already been drawn up. The District Magistrate has agreed with this view.

The District Magistrate had already stated his view in writing that it was not incumbent upon the Magistrate to accept the police report and to abstain from drawing up proceedings u/s 110, Criminal P.C., but he had given his definite ruling; in this particular case it was desirable that a fresh local inquiry should be made into the allegations of the tenants before continuing with the proceedings. I therefore] do not see how the learned Magistrate Maulavi Ahmad Mohammad says in his order that the District Magistrate had agreed with a different view that in this particular case he need not make any fresh local inquiry. All that the District Magistrate must have said was that "it is a matter entirely in your discretion, because the law does not enjoin that any local inquiry should be made before starting proceedings, but under the circumstances, my view is that you would do well in making a fresh inquiry first."

The learned District Magistrate by a mere oral conversation with Maulavi Ahmad Mohammad could not have intended to abrogate in the least the effect of his original order which was expressed in very strong terms and, in my opinion, in accurate and correct terms, on 11th March 1938. It is unfortunate that the learned officer Maulavi Ahmad Mohammad thought, it necessary to discuss the matter with his superior officer who could be sitting in appeal or revision against his subsequent", orders in these proceedings. When a matter has reached a judicial stage, the Executive Officers should be careful to see that judicial proceedings are conducted in such a manner as not to shake in the least the confidence of the public. In the present case if for no other reason than this I would have had no hesitation in transferring the proceedings from the file of Maulavi Ahmad Mohammad.

The question now arises as to what is the proper order which this Court should pass. In view of the attitude correctly taken by the petitioner, I think the proper order to pass in this case is that the present proceedings be quashed and the matter do remain at the same stage at which it was before the learned Sub-Divisional Officer on 9th February 1938; that is to say, all the orders from and including the order dated 9th February 1938 be set aside and the record be now placed before the Sub-Divisional Officer of Sitamarhi who will proceed to peruse the petition of the tenants, the report of the Inspector and the protest petition filed by the tenants. If the Sub-Divisional Officer is satisfied from these materials that there is no necessity of any further inquiry into the allegations, he will pass an order to that effect; but if he comes to the conclusion that it is desirable to make further inquiries therein, then he will depute a Sub-deputy Magistrate to inquire into these allegations in a summary manner so that there may be proper materials upon which action may or may not be taken against the petitioner. It is also desirable that the reports of the previous Sub-deputy Magistrates, who appear to have been deputed from time to time to look into similar allegations of the tenants, should be made available to the officer who will now be deputed, if necessary, to conduct a further inquiry.

The attention of the learned Sub. Divisional Officer is drawn to the case in Rajendra Narain Singh v. Emperor 17 CWN 238 which will be of assistance to him in considering the matter further and also in drawing up the proceedings if he comes to the conclusion as the result of an inquiry, if any, that the allegations are prima facie of such a character as to require the petitioner to meet them. It is open to the Sub-Divisional Officer to conduct the inquiry himself if he decides judicially to proceed in the matter further instead of deputing any subordinate officer. With these remarks the proceedings are quashed and the record is directed to be placed before the Sub-Divisional Officer of Sitamarhi who will dispose of it in the light of the observations made by me in the course of this judgment.