Madho Singh and Others vs Emperor

Dhavle, J.—This is an application in revision against an order of the Sub-divisional Magistrate of Arrah deciding to continue a proceeding drawn up by him u/s 107, Criminal P.C., against the petitioners on 27th September 1941. That proceeding was based on a report of the Sub-Inspector of Police, Shahpur, that the petitioners "are aggressors since they do not go to the civil Court in spite of 144 notices by S.D.O. Sadr, and...are determined to commit serious occurrences in order to assert possession over the land disputed by them." The Sub-Divisional Magistrate was satisfied from this report that "there is imminent danger of breach of peace between the parties on account of dispute over 232 bighas of land in village Bharasra Bansgit even after the accused persons...were restrained under Sec 144, Criminal P.C., by my order dated 28th June 1941 and...have been committing overt acts to dispossess Bindhyaohal Prasad, landlord." By his proceeding of 27th September the Magistrate accordingly ordered the petitioners to appear before him on 7th October and show cause why they should not be bound down u/s 107 in bonds of Rs. 250 each, with two sureties each, to keep the peace for a period of one year. On 7th October the petitioners appeared and showed cause on a number of grounds. The Magistrate chose to overrule this (and fix dates for hearing the evidence) by an order of 11th October, which is now assailed in revision before me. The District Magistrate was moved against the order on 15th October, but found "nothing irregular in the order of the lower Court in having used its discretion to proceed u/s 107."

The order passed by the learned Magistrate u/s 144 on 28th June was brought up in revision to this Court after a summary refusal by the District Magistrate to interfere. The matter came before me, and it was anticipated by counsel for the petitioners and anticipated rightly, having regard to the settled practice of this Court that this Court would decline to interfere as the order would become time-expired in a few days. Learned Counsel, therefore, prayed that it should be made clear that the finding of possession on which the order u/s 144 was based should carry no weight in subsequent proceedings under the obviously appropriate section, viz., Section 145. With the order u/s 144 before me, I considered that in the circumstances of the case the petitioners were entitled to an observation to that effect, and I made this clear in dismissing the application in revision. The petitioners referred to this in para. 3 of the oause shown by them on 7th October. But the Magistrate, surprising as it seems, decided "An order u/s 144 has been passed and a finding regarding their possession over the disputed land has already been given. Bowing down to the suggestion made by the Honourable High Court, I am of opinion that in the present circumstances this proceeding is necessary to stop further apprehension after the order u/s 144, Criminal P.C. The question whether the other party is also committing overt act or not must necessarily come up within the purview of this Court in the course of this inquiry, and then if it is found necessary a proceeding u/s 107, Criminal P.C., will be drawn up against Bindhyachal Prasad and others."

The Magistrate thus appears, among other things, to have made up his mind that the question of possession is concluded against the petitioners by his order in the proceeding u/s 144 and that action may properly be taken u/s 107 against the petitioners alone, at any rate in, the first instance. He may possibly proceed against the other party under this section if the present proceeding should disclose the commission of overt acts by them presumably meaning acts of a character not warranted by the possession that he has found in their favour. If this be the view of the Magistrate, it is wrong throughout, and his error is the less excusable because he had been unmistakably told that his order u/s 144 could carry "no weight in subsequent proceedings under the obviously appropriate section, viz., Section 145." He has also failed in his duty by insisting on applying Section 107 in the face of what was clearly pointed out to him as the proper section to apply and thus committing a deliberate error, saying (singularly enough) that he is "bowing to the suggestion made by the" Honourable High Court." It is regrettable that the District Magistrate saw nothing irregular in proceedings taken by a subordinate Magistrate in such deliberate disregard of what this Court had said for his guidance. The dispute between the parties relates to bakasht land, some of which is said by the petitioners to have been settled with them by Lady Jwala Prasad in June 1940. Lady Jwala Prasad died in June 1941, but even before her death, and indeed before her settlement with the petitioners, there appears to have been at least one dispute between her and Mr. Bindhyachal Prasad who apparently claimed possession of the land on her failure to pay canal dues and his payment of them. The petitioners claimed to have come into possession under the settlement from Lady Jwala Prasad, and they denied the actual possession of Babu Bindhyachal Prasad and others of the party opposed to them in the proceeding u/s 144.

Preventive action under Part 4, Criminal P.C., can be taken under various sections, each with its own scope and conditions of applicability. A dispute likely to cause a breach of the peace concerning land can be dealt with u/s 145, Criminal P.C. It used to be said at one time that the section had no application to disputes which were not bona fide. But Rankin C.J. pointed out in the Full Bench case in Agni Kumar Das Vs. Mantazaddin and Another, et. seq. how such disputes, be they ever so mala fide, are neither outside the scope of Section 145, nor peculiarly amenable to Section 107, Criminal P.C.; and action u/s 145 in such disputes cannot properly be said to be inadmissible and not warranted by law. It is also well settled since the Full Bench decision in Emperor v. Abbas 1912 39 Cal. 150, that the fact that a dispute likely to cause a breach of the peace concerns land does not by itself deprive a Magistrate of jurisdiction u/s 107, Criminal P.C. Such disputes can be dealt with under this section on information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity. It is, however, essential, for the section to apply, that the acts committed or likely to be committed should be wrongful. Acts committed in the lawful exercise of the right of private defence cannot support proceedings under this section, and it is therefore to the party who is not in possession of the disputed property that the operation of this section is usually restricted.

Disputes regarding land can also be dealt with u/s 144, Criminal P.C., provided that in the opinion of an authorised Magistrate "there is sufficient ground for proceeding under this section and immediate apprehension or speedy remedy is desirable." Orders passed under this section, however, are merely "temporary orders in urgent cases...of apprehended danger," (to quote from the heading of Chap. 11), and cannot remain in force for more than two months (unless in certain cases the Provincial Government by notification in the official Gazette otherwise directs). They are further not always passed in strict conformity with the legal rights of private parties, but may in proper cases constitute an interference, with private rights required in a temporary emergency. Nor is it to be expected, having regard to their temporary and urgent character, that they would be passed after taking evidence of possession in the manner laid down in Sub-section (4) of Section 145 so as to entitle the Magistrate judicially to pronounce on the fact of possession. This is the reason why such orders are often said to decide nothing about the respective rights of parties: see Munni Lal v. Gatti Ahir AIR 1925 Pat 514 and Gita Prasad Singh v. Emperor AIR 1925 Pat.17 (which will be again referred to later). The result is that "it has been repeatedly held that ordinarily unless the facts are on the face of them quite clear, a proceeding should be drawn up u/s 145 for the purpose of investigating the question of actual possession of land," as was said by Mullick, J. in Muhammad Abdul Hasnat Vs. Rambilas Singh and Others, , a case in which (as in the present case) the Subdivisional Magistrate had first passed an ex parte order u/s 144 without any investigation and had later confirmed that order, which, the learned Judge pointed out, "did not improve matters because it was passed upon an inspection of the records without examining witnesses as to actual possession." The matter was brought up to this Court in revision after the expiry of two months from the first order, and though the learned Judge declined to interfere because the order having spent itself, no further proceeding with a view to setting it aside would be effective, he pointed out that if there was still any further apprehension of a breach of the peace, the proper course would be to take proceedings u/s 145. It was this reported decision that I had in mind when I dealt with the Magistrate''s order of 28th June. Being in the responsible charge of a sub-division, the Magistrate should himself have been aware of the decision; and in any case it is difficult to see how the Magistrate takes it to be consistent with his duty to "bow down to the suggestion made by the Hon''ble High Court," as he calls it, and to proceed at once to express the opinion that the proceeding u/s 107 was necessary "to stop further apprehension after the order u/s 144." This can only mean an acceptance of the view of the Sub-Inspector that the petitioners must be regarded as aggressors since they do not go to the civil Court in spite of the order u/s 144. If this be the view of the Magistrate, he is to be as little congratulated on his knowledge of law as on his sense of duty. Section 144 is expressed clearly enough to show that, an order passed under it is (ordinarily) to operate for no more than two months; and in taking that order as the basis of the proceeding u/s 107 the Magistrate should have seen that he was giving it a more extensive operation than is authorized by the law. The point has, moreover, been dealt with in one reported ruling after another. In Munni Lal v. Gatti Ahir AIR 1925 Pat.514 for instance, two learned Judges of this Court, in declining to interfere in revision with an order u/s 144 after it had spent its force, pointed out that the observation of the Magistrate as regards the possession of the first party was simply an incidental observation made in order to enable him to make an order u/s 144, and that it could not have the force of an order u/s 145 and was therefore of no use in determining the question of actual possession, if the question arises in a subsequent proceeding." Another Bench had discussed the same matter in Gita Prasad Singh v. Emperor AIR 1925 Pat. 17 in which Mullick J. had pointed out that "having regard to the peculiar jurisdiction conferred by Section 144 no inference of possession can be drawn from it. It is a summary order and is in the nature of a temporary injunction intended for emergencies and should not be utilized in subsequent proceedings as substantive evidence of possession of a successful party." Whether or not the Magistrate was aware of such rulings--and if he was, he may, for aught one knows, have been prepared to "bow down" to them also and nevertheless take his own line--he had no justification for failing to see that his order u/s 144 could not possibly stand on the same footing as an order u/s 145(6), based as this latter would be on evidence of possession regularly produced in Court, and declaring the successful party "to be entitled to possession thereof until evicted therefrom in due course of law" and forbidding "all disturbance of such possession until such eviction." He should, however, have had no difficulty in realizing that it is not u/s 144 but u/s 145 that the question of disputed possession is decided once for all so far as the Magistrate is concerned. In the proceeding u/s 107, which he based on the order u/s 144 it would appear that he did not intend to go into the question of possession at all; and this was wrong because the petitioners, if in possession, would have the right of private defence. Supposing, moreover, that the Magistrate was induced to do his duty and go into the question of possession in this proceeding, his finding of possession, if in favour of the petitioners, would again not have stood on the same footing as an order u/s 145(6), and there would have been much avoidable harassment to the parties and waste of public time.

The injustice of proceeding against one of the contending parties u/s 107 on the footing of an order u/s 144 previously passed against this party has also been repeatedly pointed out. In Shama Charan and Others Vs. Emperor, a proceeding u/s 107 was quashed on this ground. In Amanat Ali Vs. Emperor, , Fazl Ali, J. similarly set aside a proceeding u/s 107, and pointed out how the two courses open to the Magistrate were (1) to proceed u/s 145 and "decide the dispute as to possession once for all, so far as the criminal Court is concerned" or (2) to proceed u/s 107 against both the parties to the dispute and bind down the party who is proved to be not in possession of the land. In Saddique and Others Vs. Sheikh Mohid and Others, James J. similarly quashed a proceeding u/s 107 and directed the Magistrate to proceed u/s 145 if he considered that danger of a breach of the peace rendered proceedings under Part 4, Criminal P.C., necessary. This was in a case in which there had been a previous order u/s 144, and the learned Judge pointed out how even a definite order u/s 144 must be ignored when evidence regarding possession is being considered in proceedings u/s 145 and how it would be necessary before proceedings u/s 107 could be properly instituted against one party to ascertain which of the parties to the dispute was in possession of the land, "which can more conveniently be done by proceedings u/s 145."

Reference has been made on behalf of the opposite party to Harihar Singh and Others Vs. Emperor, , in which Maopherson, J. declined to interfere with a proceeding u/s 107 instituted after certain previous proceedings including proceedings u/s 144. The learned Judge distinguished Saddique and Others Vs. Sheikh Mohid and Others, , decided by James J. on the faots and was not prepared to agree that "convenience is necessarily a good criterion and, still less, a general criterion." His view was that the Magistrate is necessarily in a better position than this Court to say which of the powers (under Sections 107 and 145) is called for by the situation confronting him at the crucial moment and that it is enough that the action which is taken is not illegal or definitely improper. This was however said in a case in which four members of the petitioners'' party had already been convicted of theft of crops from the disputed land, and the learned Judge further found that having regard to the course of events in the village and in the Courts (especially a title suit which was nearing completion), proceedings u/s 145 would be inexpedient and the intended proceeding u/s 107 was not improper. The ruling dearly does not lay down anything intended generally to guide the lower Courts nor throw any doubt on the settled view that an order u/s 144 is of no use in determining possession beyond the period during which it remains in force.

In the present case the proceeding u/s 107 is clearly improper. As regards the foundation on which it is based the Magistrate was unquestionably wrong in accepting the view of the Sub-Inspector that the "petitioners are aggressors because they do not go to the civil Court in spite of the order u/s 144," for that order can in no sense be treated as a decision of any value on the question of possession. That order was based on the view of the Magistrate that "the right and title of the second party (that is to say, the present petitioners) over the disputed lands must be held to be bad in law" and that the question of possession of the parties after the execution of the lease by Lady Jwala Prasad had been "thrashed out and decided upon by the Collector in his judgment of 18th April 1941." This judgment has been placed before me. It seems to have been given in a mutation case in the Canal Department, and all that the Collector seems to have held was that the Canal authorities had not the slightest justification for allowing the name of Babu Bindhyachal Prasad which had been entered in their papers on 30th September 1940, to be replaced by that of the petitionees on the strength of the thica executed in their favour by Lady Jwala Prasad. Whether this view was based on any evidence of actual possession given in those proceedings does not appear from the judgment, and in any case, the order of the Collector, such as it was, manifestly lacks the weight and force of a definite decision by the Criminal Court in a proceeding u/s 145.

On behalf of the opposite party it is pointed out that the Sub-Inspector also referred in his report to a case of rioting on 9th September 1941, and to the tahsildar of Babu Bindhyaohal Prasad lodging "several sanhas of late re: threats and other petty incidents." The record of the case of rioting shows that the Sub-Inspector reported that the riot was "technical in nature" and that the prosecution witnesses were "either suspects or ex-convicts. They are all interested." He therefore did not submit a charge-sheet for the prosecution of the offenders (the petitioners or their men), but prayed instead that they be bound down u/s 107 "for which another report is attached." The Magistrate does not indicate what weight, if any, he attached to this rioting case, and I prefer to assume in his favour that he was aware that if the riot could not be proved by reliable witnesses in a case u/s 147, Penal Code, a proceeding u/s 107 on the basis of such a riot would be wholly improper.

The most serious objection to the proceeding u/s 107, however, is that the Magistrate has obviously made up his mind on the order u/s 144 that the petitioners are not in possession. But the question of possession has not been found against them in a proper proceeding, and if they should really be in possession, acts committed by them in maintaining their possession against the suspects and the reconvicts supporting Mr. Bindyaohal Prasad will not be wrongful provided they do not exceed the petitioners'' right of private defence.

The order under revision must therefore be set aside and the proceeding u/s 107 quashed. The correct course to follow in case of an apprehension of a breach of the peace had already been indicated to the Magistrate; and I am compelled to add that it is as much to be regretted that the Magistrate failed in his duty by deliberately ignoring it as that the District Magistrate failed to notice such wilful disregard of the law by the Sub-divisional Magistrate.