Panchi Ram and another vs Sheikh Muhammad Abdulla

Ross, J.—This is an application by six persons against an order by the Magistrate of Madhipura passed u/s 144, Criminal Procedure Code. The application was only admitted in respect of three petitioners Panchi Ram, Sava Chand and Tajmul.

A preliminary objection is taken that the force of the order has expired and that the Court ought not to interfere. The matter however is not clear because although the substantive order was passed on the 9th December, 1921, the Magistrate recorded an order on the 25th January, 1922, making the rule absolute. From this it would appear that the Magistrate intended the first order to be a conditional order and as no cause was shown against it, it was made absolute on the 25th January. I do not think it is necessary therefore in the present case to give effect to this preliminary objection.

The facts of the case are that on the 2nd December, 1921, the opposite party Sheikh Muhammad Abdulla who claimed to be the lessee of a certain ghat under the Maharaja of Darbhanga, filed a petition before the Magistrate of Madhipura praying for action against certain persons Indrachand and Balchand and certain other persons who are not parties to the present petition, for having refused to pay tolls to him. As there was likely to be a breach of the peace, the Police were ordered to report on this petition by the 14th December In the meantime, as some goods belonging to the petitioners and others were detained at the ghat by the lessee, a petition was filed by six persons including Panchi Ram, Sava Chand and Tajmul, praying that the Magistrate would order the Sub Inspector not to interfere wit h their merchandise and allow them to remove their goods. When this petition was being heard the Mukhtear of the lessee said that the Police report on his petition had been received. The Magistrate therefore went into the whole matter and drew up the order complained against.

The ground on which the learned counsel for the petitioners attacked this order is that there was nothing before the Magistrate to entitle him to say that the petitioners Panchi Ram, Sava Chand and Tajmul were likely to do anything leading to a disturbance of the public tranquillity; they were merely placing their grievance before the Magistrate for such action as he was ready to take, and there was nothing in this to justify him in passing an order against them u/s 144, Cr. P. C. It is contended on the other side that the Police report refers to the Marwari merchants of Murliganj in general and that this report and the fact that the goods of these three petitioners as well as of other Marwaris had been seized entitled the Magistrate to find that these three petitioners were likely to commit a breach of the peace.

Now the Magistrate does not purport to act on personal knowledge. It is true that if he has grounds on which he is satisfied that a breach of the peace is likely, then the Court will not enquire into the sufficiency of those grounds. But the contention here is that there was no material whatsoever before the Magistrate for an order against these three men. It is clear that the petition of these three petitioners and others filed on the 9th December does not disclose any ground for an order against them. They merely recite the facts of the seizure of their property and pray for an order from the Magistrate upon the Police not to interfere with their merchandise. It is equally clear that the Police report gives the Magistrate no material for proceeding against the three petitioners. There is in the body of the report a general remark about the Marwaris of Murliganj; but certain persons are specifically named at the end of the report and the Police Sub-Inspector prays for proceedings against them. The effect of the report must be understood as limiting its purpose to these named persons. The only other document is the petition of the lessee, and this admittedly makes no reference to these three persons at all.

In my opinion the Magistrate had no materials before him upon which he could make an order against Panchi Ram, Sava Chand and Tajmul. The order so far as these three persons are concerned is without jurisdiction and must be set aside.