Jagu Pal vs Makunda Koer

Bucknill, J.—This is an application in Criminal Revisional Jurisdiction, asking that an order of the Deputy Commissioner of Maubhum, dated the 30th of March last, setting aside an order of the Sub-Divisional Magistrate of Purulia, dated the 28th February last may be reversed. The matter is certainly a curious one. In order to understand, so far as can be gathered from the somewhat scanty record, what has really taken place, it is necessary to examine carefully the order sheet of the Sub-Divisional Magistrate. It would seem that a complaint was lodged by a person as to the possession of certain property, and the Magistrate on the 18th November 1921 seems to have forwarded this complaint to the police for inquiry and report. At the same time it appears that he ordered that the paddy which was standing on the land should be cut and kept with some third person "until it is decided."

The Sub Divisional Magistrate who subsequently bad control of the case appears to have observed that notices or summonses upon the disputing parties were served. It would seem that from the beginning it was under contemplation of this Judiciary that the proceedings were being taken under the provisions of S. 145 of the Criminal Procedure Code. I cannot, however, ascertain that any proceedings as are contemplated in S. 145 were actually drawn up, but at any rate whether that is so or, not, or whether what was done constituted a proper procedure under S. 145, the fact remains that the parties did come before the Sub-Divisional Magistrate who seems to have made an investigation and an enquiry, to have heard evidence and, as I mentioned before, at a later stage it was transferred to the Sub-Divisional Magistrate for final disposal.

Now on the 28th of February 1922 the Sub-Divisional Magistrate who was dealing with the matter wrote a decision or as he calls it an order purporting to be under S. 145, Criminal Procedure Code. It is really rather difficult to understand exactly what the Sub-Divisional Magistrate considered that he was doing. He finds that no proceedings under S. 145 of the Criminal Procedure Code are any longer necessary because there had been no breach of the peace during the four months prior to his decision. One would have thought that had that been so he might simply have set aside the proceedings whatever they were and have made no order except possible as to the disposal of the already cut crops, however, as a matter of fact he did find that actual possession was with the first party and he ordered that the rice which had been cut and which was in the hands of a third party should be handed over to the first party. One cannot regard this order as very satisfactory and indeed under the circumstances it is one the propriety of which is extremely doubtful. It is said that what took place next was that the second party applied to the Deputy Commissioner missioner of Manbhum ex parte and that this officer, without issuing any notice to the present applicant and without giving the present applicant an opportunity of being heard, passed an ex parte order setting aside the order of the Sub-divisional Magistrate and directed that the rice should be handed over to the second party that is the opposite party now before me. The Deputy Commissioner quite rightly I think criticised somewhat strongly the procedure which the Sub-divisional Magistrate had adopted. He says, "this is another case in which the Sub-divisional Officer has made a mess of law and procedure and written a judgment which is not a judgment under any section of the Criminal Procedure Code or any Code."

I suppose that it is because he thinks that all the proceedings taken by the Sub-divisional Magistrate were so irregular that he thought that he was justified in not only revising or reviewing or cancelling as he did the order of the Sub-divisional Magistrate but also in doing so ex parte. The Deputy Commissioner points out that apparently no proper proceedings were drawn up under the provisions of S. 145 and that so far as he can gather notices under S. 144 were issued with regard I take it to the attachment of the crops. He also points out that the Sub-divisional Magistrate thought that there never was a likelihood of a breach of the peace. My practical difficulty in dealing with this question is that I find that the Sub-divisional Magistrate certainly contemplated proceedings under the provisions of S. 145 although it is true that his order made thereunder is somewhat incomprehensible and although it may be also true that he did not carry out the proper procedure laid down by the provisions of that section. But at the same time the order does find possession in one party and does order, as I think he could order, the attached crops to be handed to one of the parties. I am unable to see how under those circumstances it was open to the Deputy Commissioner to review the Sub-divisional Magistrate''s decision and in any case even had he been able so to do. I do not appreciate how such action could with propriety be taken ex parte. Under these circumstances I have no hesitation in setting aside the order of the Deputy Commissioner of Manbhum, dated the 30th March 1922.

There remains then on the record, that having been done, the order of the 28th February, that is the order of the Sub-divisional Magistrate, and although it may be that the primary application to me now is merely relative to the order of the Deputy. Commissioner, I cannot think that it would be right for me to refrain from dealing also with what I regard as the defective order of the Sub-divisional Magistrate. His order was not passed upon proper procedure and it must be set aside. The finding of possession is, so far as I can gather, not found in accordance with the provisions of the law. With regard to the way in which be has dealt with the disposal of the crops, his order simply follows his finding of possession and therefore in respect of that part of his order it is no better than the finding of possession itself. The very fact that he says that no proceedings under S. 145 of the Criminal Procedure Code are necessary does not itself render the possibility of proper proceedings under that section being commenced de novo should such be necessary. In the meantime his order must be set aside and the crops or the proceeds thereof retained in the custody of the Court until the rights of the parties have been properly settled in accordance with law.