Rama Barik and Another vs Emperor

These two applications in revision are directed against two orders of the Subdivisional Magistrate of Jajpur, one u/s 144, Criminal P.C., dated 30th May 1938 and the other dated 29th July 1938 directing that a complaint be made against the petitioners for their prosecution u/s 188, I.P.C. It appears that the proprietor of the Madhupur estate had for about two years a hat, in mauza Kainchi, called Madhuban Hat. It was being held on Wednesdays and Saturdays. No toll was levied on the shopkeepers who exposed their goods for sale in the hat. On 5th April 1938 the proprietor leased it out for Rs. 650 and for the first time toll was collected in it on 9th April 1938.

This seems to have been resented to by the villagers of the locality who started a rival hat adjacent to the Madhuban Hat on a land belonging to a deity installed in the village of which the petitioners are the marfatdars or managers. The rival hat was held for the first time on a Wednesday. There was no police report of any apprehension of breach of the peace but a complaint was made to the Subdivisional Magistrate of Jajpur who oalled upon the petitioners to show cause why an order u/s 144, Criminal P.C., would not be passed against them. They appeared and showed cause. The learned Magistrate thereafter held a local enquiry, examined some witnesses on 30th May 1938 and bolding that there was a likelihood of breach of the peace if the rival hat was allowed to be held, passed an order u/s 144, Criminal P.C., against the petitioners restraining them from holding the hat and calling upon them to prevent the sitting of the hat on their lands by withdrawing his (their) consent which they have given to the villagers for the holding of the hat on Wednesdays and Saturdays.

The petitioners moved the District Magistrate of Cuttack u/s 144(4), Criminal P.C., but the learned Magistrate declined to interfere and rejected the application on 8th August 1938. Criminal Revision No. 82 of 1938 is directed against this order. The order u/s 144, Criminal P.C., referred to above, was affixed in front of the house of the petitioners and was also promulgated by beat of drum. The contents of the proceeding were explained by the Sub-Inspector of Police on the spot. The Sub-Inspector of Police reported on 13th June 1938 that the new hat continued to be held within the prohibited area and that the order u/s 144, Criminal P.C., was disobeyed. The petitioners were called upon to show cause against their prosecution u/s 188, I.P.C.

They did not show cause but cross-examined the witnesses who were examined in support of the report of the Sub-Inspector of Police. As. the learned Magistrate has observed, the trend of the cross-examination was that no order was served upon the petitioners and that the hat was not held on the prohibited land. There was however evidence that the hat was held on 1st June 1938 and on 8th June 1938 and also on 22nd June 1938 after the police report.

The learned Magistrate then directed that a complaint be made to the District Magistrate for the prosecution of the petitioners u/s 188, I.P.C. A complaint was accordingly made and the District Magistrate after taking cognizance of the offence made over the case to a Magistrate of Cuttack for trial. Criminal Revision Application No. 91 of 1938 is directed against this order of prosecution. I shall take up these two applications separately.

Criminal Revision No. 82 of 1938.

It is now settled law that a Magistrate, as an emergency measure, has power to stop, by an order u/s 144, Criminal P.C., the holding of a hat, or the exercise of his rights by a man on his own land. This was the view which I took in Saligram Singh v. Baijnath Singh AIR (1984) Pat 104, and Rowland J. after reviewing all the leading authorities on the subject, came to the same conclusion in Hansraj Prasad Singh v. Abdul Jabbar AIR (1935) Pat 461. But in the former case I pointed out that a man, who holds a hat on his own land, is perfectly entitled to do so and that by itself is not a wrongful act.

Competition in trade, unless illegal methods are adopted, is not a wrongful act. When a rival business is started in close proximity to a previously established business the person interested in the latter is bound to object to the former and some sort of strained feeling is inevitable. This by itself is no ground for restraining the newcomer from carrying his trade unless he is doing or is likely to do any wrongful act which may lead to a breach of the peace. In such a case the best course is to prohibit the doing of the wrongful act or if necessary, to bind down the wrongdoer u/s 107, Criminal P.C. But an order more or less of a permanent nature is not justified u/s 144, Criminal P.C., which is meant for speedy remedy. This was pointed out in Satish Chandra Roy v. Emperor 11 CWN 79. In the second case, Rowland, J., after referring to Satish Chandra Roy v. Emperor 11 CWN 79, mentioned above, pointed out that

the real disadvantage of passing an order u/s 144 without going into the merits of the dispute is that on the expiry of two months which is the limit of the duration of such an order the whole dispute is left to break out again. To pass an order u/s 144 and to leave it as if that order disposed of the dispute finally is merely postponing trouble and inviting its recurrence in an aggravated and more complicated form at a later date.

It is true that in this case the learned Magistrate recorded some evidence a summary of which has been given in his judgment but his order did not touch the real trouble. From what he had said it appears that the villagers are annoyed on account of the levy of toll by the proprietor of the Madhuban hat and are determined to hold a rival hat at a different place where they can carry on their trade without the payment of toll. Commissions of wrongful acts were alleged against one Narain Misra, tahsildar of Ollas estate, and also against the paiks of the Madhupur estate, though the learned Magistrate has not believed the latter allegation. But no wrongful act is attributed to the petitioners. The only thing which they are said to have done is that they have permitted the villagers to hold the hat on the land which is under their management as marfatdars of a deity. In my opinion, therefore, this was preeminently a case in which those against whom allegations of wrongful acts were made should have been proceeded with under the suitable Section of the Criminal Procedure Code.

The petitioners were ordered not to hold the hat and to withdraw their consent. There is nothing to show that they were holding the bat or were personally interested in it. I am not sure whether the withdrawal of the consent by itself will be sufficient to avert a breach of the peace if it were apprehended. Therefore though the Magistrate had power of passing an order which he did, I am not convinced of the suitability of the order which is in the nature of a permanent injunction and can hardly be said to be appropriate u/s 144, Criminal P.C., though it does come within its terms. How inefficacious in such Cases an order like the one passed by the learned Magistrate is, will be apparent from what happened in this case. The order was against the petitioners in the terms already stated.

Though it was published on the spot it was not directed against the villagers. Whether an order prohibiting them to hold a hat of their own and thus to force them to go to a particular hat and pay toll would have been justified is quite a different matter. They were however free to Act as they liked and the hat was held.

It is clear from the facts of this case that the petitioners, apart from being the managers of the land on which the hat was being held, had no personal interest in it and, as I shall presently show, they were not responsible for the holding of the hat. Now, an order has been passed which was, as I have said, within the power of the learned Magistrate to pass and it is not the usual practice of this Court to interfere with an order which has spent in its force unless there are special reasons for such interference. There is none in this case. For this reason I reject the application in this criminal revision case.

Criminal Revision No. 91 of 1938.

The facts have already been stated. The petitioners have been prosecuted for disobeying an order passed u/s 144, Criminal P.C. There is nothing on the record to show that they disobeyed the order. The only thing which appears from the order of the learned Magistrate is that the hat was held, but there is nothing to show that they did not withdraw their consent. The hat might have been held in spite of the withdrawal of consent. If the villagers held the hat, the petitioners are in no way responsible for it. The learned Public Prosecutor was unable to point to any fact on which a prosecution can be based and had to concede that there is no material for the prosecution of the petitioners. The order for prosecution is unjustified and I set it aside. The complaint filed by the learned Sub-divisional Magistrate will be withdrawn and no proceeding will be taken on it and the proceeding so far taken is quashed.