Lakshman Hemrul vs Mannan Molla

N.C. Talukdar, J.—This Rule is at the instance of the first party Petitioner Lakshman Hemrul for setting aside the impugned orders and for quashing the proceedings u/s 144 of the Code of Criminal Procedure pending before Sri A. N. Bhattacharya, Sub-Divisional Magistrate, Howrah, in Misc. Case No. 230 of 1969.

The facts leading on to the Rule may be put in a short compass. An application u/s 144 of the Code of Criminal Procedure was filed on May 23, 1969, in the Court of the learned, Sub-Divisional Magistrate (S), Howrah, by the first party Lakshman Hemrul against Mannan Molla and Hannan Molla, second party, stating that the first party is a bhag-chasi who had grown jute on the disputed land in the current year, but the members of the second party who are desperate persons were bent on dispossessing him forcibly from the lands on the basis of an alleged bandobasta and on May 18, 1969, they even tried to damage the jute plants standing on the land. In view of a serious apprehension of breach of peace it was prayed for that the-members of the second party be restrained u/s 144 of the Code of Criminal Procedure from entering into the disputed land. The learned Sub-Divisional Magistrate by his order of the same date directed the O.C. of the local Police Station to enquire and report and the Police submitted a report on August 12, 1969, wherein it was found that the first party was a bhag-chasi who had grown jute on the disputed plots and that it was the members of the second party who were creating troubles by trying to dispossess the first party forcibly. It was further stated that the members of the second party who are troublesome persons may be bound by a restraint order. On going through the said report, the learned Magistrate was satisfied that there was an apprehension of breach of peace and by his order dated August 20, 1969, drew up proceedings u/s 144 of the Code of Criminal Procedure restraining the members of the second party from entering into the disputed land and to show cause, if any, by September 10, 1969. In the meanwhile, the second party showed cause by an application filed on August 23, 1969, which was not the date fixed, and prayed for vacating the order u/s 144 of the Code on the ground that the members of the second party were in fact in possession. The records along with the application were put up on August 26, 1969, which was an intermediate date, and the learned Magistrate, on going through the cause shown and the documents filed, observed that the members of the second party have also a rightful claim over the disputed plots and, in that view, restrained both the parties from entering into the disputed land till the disposal of the proceedings u/s 144 of the Code of Criminal" Procedure. This was an ex parte order passed on an intermediate date. On August 27, 1969, the first party filed an application praying that the second party men may be prosecuted u/s 188 of the Indian Penal Code for the violation of the order passed u/s 144 of the Code of Criminal Procedure by entering into the disputed land and cutting the standing jute plants on August 25, 1969. The learned Magistrate by his order dated August 28, 1969, called for a report from the Police and on September 10, 1969, the second party filed some documents in support of their claim of possession over the disputed land. The orders referred to above as also the proceedings pending before the learned Sub-Divisional Magistrate were impugned by the first party and the present Rule was obtained.

Mr. Sanat Kumar Rakshit, Advocate appearing in support of the Rule, made a three-fold submission. The first contention of Mr. Rakshit relates to the procedure, viz. that the ex parte order-passed by the learned Magistrate on August 26, 1969, restraining both the parties from entering into the land, is bad inasmuch as the same was passed on an interim date and without affording an opportunity to the first party of being heard. It was also contended in this context that in view of the report by the Police dated August 12, 1969, and the initial order passed by the learned Sub-Divisional Magistrate himself on August 20, 1969, restraining the second party from entering into the disputed land, the ex parte order was not tenable on merits. Mr. Rakshit next contended that the first party being a bhag-chasi in possession of the disputed land, the proceedings u/s 144 of the Code of. Criminal Procedure are unwarranted and untenable. The third and last submission of Mr. Rakshit is one of law, viz. that the proceedings u/s 144 of the Code'' of Criminal Procedure are unwarranted and untenable because the dispute concerned land or water and the boundaries thereof enjoining a proceeding u/s 145 of the Code of Criminal Procedure. Mr. Bikash Chandra Sen, Advocate (with Mr. Chinmoy Chowdhury, Advocate) appearing on behalf of the second party, opposite parties, ably argued the case and besides replying to the three-fold contentions made by Mr. Rakshit he raised two preliminary objections. The first such objection is that the period of ''two months from the making thereof, u/s 144(6) of the Code of Criminal Procedure, having expired the Rule has become infructuous and should be discharged. The second preliminary objection by Mr. Sen is that the present Rule is not maintainable because the first party Petitioner has not moved the Court below, in the first instance, u/s 144(4) of the Code for rescinding of altering any order made under this section. In reply to the three-fold contentions made on behalf of the first party Petitioner, Mr. Sen submitted in the first place that the procedural defect complained of because of the ex, parte order passed on August 26, 1969, is more technical than real causing no ultimate prejudice to the first party inasmuch as he would have the opportunity of being heard on merits and, accordingly, on this ground alone the proceedings should not be quashed. Mr. Sen next submitted that there is no bar in law to the institution of a proceeding u/s 144 of the Code against a bhag-chasi in cases of apprehended dangers under chap. XI of the Code of Criminal Procedure and for a speedy prevention thereof. Mr. Sen finally submitted, in reply to the third and last submission of Mr. Rakshit on merits, that proceedings u/s 144 of the Code of Criminal Procedure would not be barred merely because proceedings u/s 145 of the Code did also lie on the same facts and the existence of one did not rule out the legality or propriety of the other proceedings. Mrs. Joytirmoyee Nag, Advocate appearing on behalf of the State, adopted the submissions of Mr. Sen on merits as also the two preliminary objections raised by him. Mrs. Nag further contended that these are short and summary proceedings under chap. XI of the Code of Criminal Procedure and the dominant consideration is the prevention of apprehended danger in urgent cases. The second preliminary objection raised by Mr. Sen to the maintainability of the present Rule u/s 439 of the Code of Criminal Procedure because the party aggrieved has not availed, in the first instance, the provisions under Sub-section (4) to Section 144 of the Code for rescinding or altering the impugned order passed u/s 144 of the Code is of some importance and, in view of the conflicting decisions on the point as referred to by the learned Advocate appearing on behalf of the respective parties, this Court requested Mr. Dinesh Chandra Roy, a senior member of the Bar, to appear as amicus curia for assisting this Court to come to a proper decision, and Mr. Roy was good enough to agree.

The first preliminary objection based on the provisions of Section 144(6) of the Code is more technical than real and, even though the order may not remain in force for more than two months from the date of the order, the Petitioner can certainly impugn the legality and propriety thereof by a revisional application on the ground of further prejudice. The question is one of principle and cannot be brushed off on the ground of a purported limitation, which certainly Section 144(6) of the Code does not lay down.

The second preliminary objection, however, taken by Mr. Sen based on the provisions of Sub-section (4) to Section 144 of the Code of Criminal Procedure is a material one. It goes to the very root of the case and, therefore, should be considered in all its facts. Mr. Sen''s contention in this behalf, bereft of all verbiage, is that when a specific remedy is provided for by the Statute it should be availed of before the party aggrieved can take recourse to the general remedy available. To be more precise, his contention is that the first party having not moved the learned Sub-Divisional Magistrate for rescinding or altering the order dated August 26, 1969, whereby he was aggrieved his application for revision thereof u/s 439 of the Code of Criminal Procedure is not maintainable in law and, as such, the Rule should be discharged. In this context, Mr. Sen referred to two decisions. The first one is the case of Budhu Lal v. Chattu Gope 21 C.W.N. 269 (278) wherein Sir Asutosh Mookerjee while agreeing with the judgment of the Court delivered by Chief Justice Sanderson approved of the exposition by Lord Halsbury in the case of Pasmore v. Oswald Twistle Urban Council (1898) A.C. 387 that the principle that where a specific remedy is given by a statute, it thereby deprives the persons, who insists upon a remedy, of any other form of remedy than that given by the statute, is one which is very. familiar and which runs through the law and observed that, in case before us, the machinery for correction of possible errors is provided in Clause (6) of Section 195, and consequently, the party who seeks relief must have recourse thereto and cannot invoke the aid of Section 115, Cr.P.C, or Section 435 and 439, Cr.P.C.

The observations of Sir Asutosh Mookerjee are always entitled to the greatest respect, but the aforesaid principles as relied on by Mr. Sen unfortunately do not apply to the facts of the present case. The above-mentioned observations are made in a different context against the backdrop of Section 195(6) of the Code of Criminal Procedure which has been omitted under the amending Act XVIII of 1923. The provisions of Section 195(6), before amendment in 1923, and of Section 144(4) of the Code of Criminal Procedure are quite different, the sine qua non of one is not that of the other and the provisions of Section 144(4) of the Code are, in the first instance, neither appellate nor revisional. The principles laid down in this above-mentioned decisions, therefore, would not be applicable for determining the point at issue in the present case. The next case cited is the case of the The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, . It was observed in the minority judgment delivered therein by Mr. Justice Bhagwati: It is a well-known rule of the interpretation of Statutes that a particular enactment is not repealed by a general enactment in the same Statute (Beal on the Cardinal Rules on Legal Interpretation, 3rd ed., pt. VII, S. IX, P. 516). Reliance was placed in support of the above proposition on the following observations of Best C.J. in Churchill v. Crease (5828) 5 Bing. 177 (180) (L). The facts of the above-mentioned case again are different and the point involved in the present case is not so much of a particular intention incorporated in a Statute being incompatible with the general intention but of the two provisions, viz. under Sections 144(4) and 439 of the Code of Criminal Procedure being concurrent and exercisable by two different agencies and in different exigencies. The provisions u/s 144 of the Code of Criminal Procedure are highlighted by emergency. Provisions u/s 144(4) or u/s 145(5) have been enacted to meet the exigencies in urgent cases of apprehended danger, because orders are to be passed immediately rescinding or altering or cancelling the previous order as the case may be and it cannot wait till the High Court could be moved u/s 439 of the Code of Criminal Procedure. The extent of the provisions under Sections 144(4) and 439 of the Code of Criminal Procedure are quite different. Firstly, the purpose of the former is to meet an emergency by an expeditious order in a fit and proper case which emergency cannot be met by a belated application before the High Court u/s 439 of the Code of Criminal Procedure, secondly, the scope and ambit of the latter, viz. u/s 439 of the Code is very much wider relating to cases where the order u/s 144(1) is without jurisdiction or clearly unwarranted and untenable requiring the same to be quashed and, thirdly, the respective form is also different, viz. superior and subordinate with a consequent difference in jurisdiction. While I respectfully agree with the principles laid down by their Lordships of the Supreme Court, I hold that Mr. Sen has erred in applying the same to the facts of the present case inasmuch as the same is wholly different. Mr. Rakshit appearing in support of the Rule joined issue. He submitted that when the party aggrieved challenges the very initiation of the proceedings, Section 144(4) will be of no help to him because such proceedings can only be quashed by the High Court. The remedies are different and there is no impropriety or illegality in moving the High Court in the first instance for quashing the proceedings u/s 144 of the Code of Criminal Procedure. Mr. Rakshit further submitted that the provisions incorporated in Section 195(5) of the Code the 1923 amendment are neither appellate nor revisional but merely a special jurisdiction and, as such, the principles laid down in Budhu Lal v. Chattu Gope ( Supra) quite distinguishable.

The learned amicus curia appointed in this case made his submissions and referred to several decisions. Mr. Roy referred in the first instance to the case of Madan Lal Vs. Fulchand Ram and Others, , wherein the learned Counsel took the preliminary objection to the application being heard by the High Court because the party aggrieved should have gone to the District Magistrate in the first instance u/s 144(4) of the Code for rescinding or altering the order. Mr. Justice Jwala Prasad overruled that contention and held that the Petitioner, however, asks to have the order set aside on the ground that the Magistrate had no jurisdiction to make the order u/s 144 of the Code. This question could not to my mind be entertained by the District Magistrate, or the Magistrate, who passed the order in question. The Petitioner invokes the power of revision or superintendence of this Court. Such a power does not exist in the Subordinate Court.

The learned Judge referred to the decision of Mr. Justice Das in Criminal Revision Case No. 299 of 1919 decided on September 22, 1919, and adopted the reasoning of the learned Judge for holding that Section 144, Clause (4) was not intended to be exercised as an appellate or revisional power, that is to say, it was not intended to be exercised when circumstances arose rendering the continuance of the order necessary or rendering the alteration of the order necessary.

The next case cited by Mr. Roy is the case of Shebalak Singh v. Kamaruddin Mondal ILR Pat. 94 (108, 109) (F.B.) wherein Mr. Justice Jwala Prasad observed that no doubt we insist that a party should exhaust all his remedies in the Courts below before he comes to this Court. This is only a practice and a very desirable one, but there is no absolute bar in law to the party coming direct to us u/s 107 of the Government of India Act, when there is no right of appeal.

The next case cited by Mr. Roy is the case of Pitchai v. M.M.C. Muhammad Atham Sammatti ILR Mad. 149 (151, 152). A point was taken in that case that the revisional application did not lie to the High Court as the parties could have gone to the District Magistrate u/s 144(4) for rescinding or altering the order, and it was further argued that the powers of the District Magistrate are appellate powers and, therefore, u/s 439(5) of the Code of Criminal Procedure no appeal having been made to him, no revisional application to the High Court can be entertained. It was observed by Mr. Justice Pakenham Walsh that several cases have been quoted on the analogy of the old Section 195(7) but I do not think they have any bearing on this case, for the simple reason that that section did not empower the Court to revise or change an order passed by itself which Section 144(4) does and all the cases quoted proceed on the footing that the appellate or revising Court is superior to the Court whose order is sought to be appealed against or revised.... Here we are dealing with a peculiar section, namely Section 144(4), conferring a jurisdiction upon a Magistrate which, whether even if it can be called appellate or revisional, cannot be so called in the ordinary sense of those words, namely, of a superior Court dealing with an inferior one...... Therefore, in my opinion, this argument that a revision petition cannot be filed to this Court must be rejected.

Mr. Roy cited the case of Surendranath Kabashi v. Gostha Behari Kabashi 37 C.W.N. 962 wherein Mr. Justice Lord Williams and Mr. Justice McNair observed that although the proper procedure, when an order u/s 144 of the Code of Criminal Procedure is passed against a person, is to proceed under Clause (4) of that section, the High Court will in a proper case entertain an application u/s 439 direct against such order. A reference in this context was also made to the case of Purna Chandra Tewari Vs. Saogat Ali Mallick and Others, wherein Mr. Justice S. K. Niyogi rejected the preliminary objection raised by the learned Counsel in that case and observed that the jurisdiction conferred by Section 144(4) of the Code of Criminal Procedure is neither appellate nor revisional jurisdiction but a special jurisdiction conferred by a special provision of the statute and the failure to apply u/s 144(4) Code of Criminal Procedure for the rescission or alteration of the order u/s 144 of the Code of Criminal Procedure is no bar to the filing of a revision petition against it.

Mr. Roy lastly referred to the case of Hrushikesh Acharya and Another Vs. Balaram Pati and Another, wherein Mr. Justice G.K. Mitra observed that the jurisdiction has been held as a special one and not as appellate or revisional jurisdiction.

I respectfully agree with the observations made above and I hold that it is abundantly clear that the jurisdiction conferred u/s 144(4) of the Code of Criminal Procedure is neither revisional nor appellate and the exercise of the same is not a condition precedent to the exercise of the powers of this Court u/s 439 of the Code of Criminal Procedure. The powers u/s 144(4) and Section 439 of the Code of Criminal Procedure are, in my opinion, concurrent powers and Section 144(4) of the Code does not provide a special provision in a special Statute ousting thereby the jurisdiction of the High Court u/s 439 of the Code of Criminal Procedure if and when the subordinate Court is not moved in the first instance. Similar provisions are there in the Code of Criminal Procedure, viz. Sections 145(5), 207A, 209(2), 251A(2), 253(2) etc. and the said provisions in no manner tinker with the overall jurisdiction of the High Court conferred u/s 439 of the Code apart from its inherent powers to secure the ends of justice u/s 561A of the Code and of general superintendence over all Courts and Tribunals under Article 227 of the Constitution of India. It has been observed in some of the decisions that ordinarily the remedy provided for u/s 144(4) of the Code of Criminal Procedure should be availed of before invoking the jurisdiction of the High Court u/s 439 of the Code of Criminal Procedure and that is a rule of practice. A mere rule of practice cannot override a statutory provision and circumscribe the jurisdiction of the High Court. In this context a reference may be made to the case of Bon Behari Mondal Vs. Bhusan Chandra Barui and Others, wherein it was observed:

Practice is but the handmaiden of law and cannot be allowed to override the latter and be her jealous mistress. The High Court is indeed the palladium of justice and its stream must remain unfettered.

A reference may also be made to the observations of Sir John Woodroffe in the case of Lekhraj Ram Vs. Debi Pershad :

I am of the opinion that there is no form of judicial injustice which this Court, if need be, cannot reach.

I respectfully agree with the said observations. I have already found that the context of Section 144(4) is entirely distinct from that of Section 439 of the Code. The initial lack of jurisdiction, the non-maintainability of the proceedings in law and similar other objections going to the root of the case cannot be properly traversed by invoking the jurisdiction of the learned Magistrate under s: 144(4) of the Code of Criminal Procedure and the same can be determined properly and adequately by the High Court only in the exercise of its re visional jurisdiction. Apart from the same, the powers of the High Court are untrammeled and unfettered and can always be exercised debito justitia in spite of the concurrent jurisdiction of the Court below. I, accordingly, overrule the second preliminary objection raised on behalf of the second party opposite party by Mr. Sen and hold that the present Rule is quite maintainable.

I will now proceed to determine the points raised relating to the merits of the Rule. As to the first contention raised by Mr. Rakshit relating to the procedure, I must hold that the procedure adopted by the learned Sub-Divisional Magistrate has not been in conformance with law. In view of the report by the Police dated August 12, 1969, and in view of his own satisfaction as incorporated in the order dated August 20, 1969, the subsequent order passed by him on August 26, 1969, should not have been passed on an interim date but in the presence of both the parties after giving an opportunity to the first party of being heard. There has bend an unnecessary haste and the order dated August 26, 1969, is not a proper order-. The point at issue may be approached from another standpoint, viz, the principles of natural justice and due process of law. The principles laid down by Jessel, M.R. in Taylor v. Taylor were approved of by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. King Emperor 63 I.A. 372 (381-82). Lord Roche delivering the judgment of the Judicial Committee observed:

The rule which applies is a different and not less well recognised rule, viz. that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

The ex parte order passed by the learned enquiring Magistrate on August 26, 1969, is not in due'' process of law and, as such, cannot �be upheld. But, on this ground alone the entire proceedings cannot be quashed and I will have to dispose of the Rule on merits. The second contention raised by Mr. Rakshit on the footing that the first party is bhag-chasi will not rule out a proceeding u/s 144 of the Code of Criminal Procedure if the same be otherwise maintainable. The third and last submission raised by Mr. Rakshit goes to the very root of the proceedings. Mr. Rakshit has urged in this context that the facts and circumstances alleged clearly disclose a dispute likely to cause a breach of peace ''concerning any land or water'' within the bounds of Section 145(1) of the Code and, accordingly, for a proper determination of the dispute the learned Sub-Divisional Magistrate should have proceeded u/s 145 of the Code of Criminal Procedure and not u/s 144 as done in the present case. Mr. Rakshit further submitted that the proceedings u/s 144 of the Code of Criminal Procedure cannot determine the present dispute properly. The submissions made in this behalf by Mr. Sen that proceedings u/s 144 of the Code are good enough is not tenable because of the intention of the Legislature incorporated in the provisions of Section 145(1) of the Code.

In this context, a reference may be made to the case of Kalipada Roy Vs. Sunil K. Ghose and Others wherein Mr. Justice Henderson observed that in a case of apprehension of breach of peace in connection with the possession of a land, it is improper to pass an ex parte order u/s 144 of the Code of Criminal Procedure instead of starting proceedings u/s 145 of the Code of Criminal Procedure. The learned Judge observed that in such cases the drawing up of a proceeding u/s 144 of the Code of Criminal Procedure would be ''ill advised''. I respectfully agree with the said observations, and I hold that in the facts and circumstances of the present case the proper proceedings should have been u/s 145 of the Code of Criminal Procedure and the present proceedings u/s 144 of the Code are not, accordingly, maintainable in law and should be quashed.

Before I part with the case I must place on record my appreciation of the able assistance rendered by Mr. Dinesh Chandra Roy, the learned amicus curie appointed in this case, in enabling this Court to come to a proper decision.

In the result, I make the Rule absolute and set aside the impugned orders and quash the proceedings u/s 144 of the Code of'' Criminal Procedure being Misc. Case No. 230 of 1969, pending in the Court of the learned Sub-Divisional Magistrate, Howrah.