Pashupati Mondal vs Birendra Nath Dey

A.K. Das, J.—This revisional application is against an order passed by the Sub-divisional Magistrate, Suri, Birbhum, dropping a proceeding drawn up by him u/s 144, Code of Criminal Procedure.

The Petitioner Pashupati Mondal filed an application on July 3, 1969, alleging that the opposite parties were trying to forcibly dispossess him from lands cultivated by him after destroying the crops grown on the land and also damaging his pump etc. He alleged that he was being threatened and that there was apprehension of breach of the peace.

The learned Magistrate Mr. S.R. Saha was satisfied that there was immediate apprehension of breach of the peace, and drew up proceedings u/s 144, Cr.P.C, against the opposite parties restraining them from disturbing the transplanted paddy on the land....and also from destroying the pumping machine.....

He also directed the opposite parties to show cause, if any, on July 31, 1969.

Next day, i.e. on July 4, 1969, the Sub-divisional Magistrate Mr. K. Bhattacharjee peruses a petition by the opposite party Bireridra De, himself takes up the file, drops the proceedings, as there is at present no apprehension of breach of peace as it is learnt from the O.C., Sainthia P.S., over phone. In passing the order the learned Magistrate observed that it is clear that the vested land had been illegally possessed by Pashupati Mondal which amounts to criminal trespass against Govt. Land for which J.L.R.O. may start a case u/s 447, I.P.C. against Sri Mondal. There is at present no apprehension of the breach of peace as it is lariat from O.C., Sainthia P.S., over phone. The proceeding u/s 144, Cr.P.C, is dropped and the restraint order is vacated.

This petition was filed by the opposite party, Biren De, stated to be a Communist leader, not by way of a show cause under Sub-section (4) of Section 144, Code of Criminal Procedure, and immediately the learned Magistrate passed an order in the absence of the Petitioner, Pashupati, although the Magistrate had earlier fixed July 31, 1969, as the date for showing cause. If a Magistrate was satisfied on July 3, 1969, that there was immediate apprehension of breach of the peace, how this Sub-divisional Magistrate on the next day was assured that there was no apprehension of breach of the peace, passes our comprehension. The record discloses that this revelation was made to him by telephone message to him by the Officer-in-charge, Sainthia. It is unusual for a Magistrate exercising judicial function to exhibit this undue haste and eagerness as to invite telephonic information from a Police officer on the next date and to act judicially on such message without waiting for the date fixed and without hearing the Petitioner.

This is not all. Next portion of the order is interesting reading:

J.L.R.O., Sainthia, will go to the spot with his departmental amin to demarcate, measure and to distribute the vested lands amongst the landless and poor peasants according to the Govt, instructions in this regard. If Sri Pashupati Mondal obstructs J.L.R.O. in his lawful duty, immediate case will be started against him and the same should at once be reported to me by the J.L.R.O.

He directs J.L.R.O., Sainthia, to go to the spot with his departmental amin to demarcate, measure and to distribute the vested lands amongst the landless and poor peasants according to the. Government instructions in this regard. A Magistrate sitting as a Magistrate and deciding an application u/s 144, Code of Criminal Procedure, taking undue interest to telephone a Police officer and acting on the instruction of the Government and over-stepping the limits of his powers as a Magistrate to direct the J.L.R.O., Sainthia, to demarcate, measure and distribute lands amongst the landless and poor peasants, betrays a biased outlook, and should be stripped of his powers as a Magistrate if we value our doctrine of the ''rule of law''. We believe, we are still living in the land where the rule of law prevails and where Magistrates are expected to be independent, particularly of Police and the executive and such type of a Magistrate puts the entire magistracy into disrepute.

But this is not all. He then proceeds to threaten Pashupati that if he obstructs J.L.R.O. in his lawful duty, immediate case would be started against him and the same should at once be reported to him by the J.L.R.O. Obviously, the Magistrate does not trust the other Magistrate who might be more sensible than he and, therefore, directs that the matter do come back to him. A Magistrate like this pollutes the seat of justice and it is dangerous to vest a man like him with first-class power and the sooner he is relieved is better for the administration of justice.

The entire proceeding had been illegal from start to finish and the learned Sub-divisional Magistrate was acting as if he was taking orders from the Police, political parties and executive Government. The order passed by him is set aside and the proceeding u/s 144, Code of Criminal Procedure, already started, be proceeded with.

The Rule is made absolute.

Let a copy of the above judgment be forwarded to the Chief Secretary, Government of West Bengal.