Rupan Singh and Others vs Emperor

Reuben, J.—The five petitioners have been convicted u/s 188, Penal Code, for disobedience of an order passed u/s 144, Criminal P.C., and sentenced each to a fine of Rs. 40. The first order in the proceeding u/s 144, Criminal P.C., is as follows:

13-12-1941. Police report seen. Issue notice u/s 144, Criminal P.C., on both parties not to go to the land and to show cause by 12-1. S.I. to go to harvest and store the crop and to report compliance on that date.

The accused persons--petitioners--represent the second party in that case and the complainant-opposite party was the first party. The parties appeared before the Magistrate and filed written statements. After hearing their arguments, the Sub-divisional Magistrate disposed of the case on 30th January 1942. Each party claimed to be in possession of the land. The Magistrate found that the case was "rather doubtful;" but on the ground that the first party produced certain rent-receipts, he found that party to be in possession. He, therefore, discharged the order against the first party and made the order absolute against the second party. He added the direction: "Crop to go to the first party." The prosecution case is that on 10th February 1942, that is one day before the expiry of the period of 60 days from the original order u/s 144, the complainant went to the land in order to harvest the crop. Thereupon, the accused-petitioners came and opposed. The complainant insisted on cutting the paddy, but the accused, Rupan Singh, gave orders for assaulting the complainant. On this the complainant was compelled to come away from the land. This case was deposed to by two witnesses in addition to the complainant, and the story has been accepted by the learned Sub-divisional Magistrate.

Two points are raised before me: Firstly, that the order u/s 144, Criminal P.C., was illegal and without jurisdiction; and, secondly, that the facts alleged do not constitute a disobedience of the order passed by the learned Sub-divisional Magistrate. The portions of the order u/s 144 which are attacked are the portions which direct the Sub-Inspector of Police to harvest and store the crop, and the direction in the final order that the crop is to go to the first party. This latter direction is evidently meant to be complementary to the direction given to the Sub-Inspector to harvest the crop. On a perusal of Section 144, Criminal P.C., there is not the slightest doubt that the direction to the Sub-Inspector to harvest the crop was without jurisdiction. The powers of a Magistrate u/s 144 extend to a direction, in the proper circumstances, to any person "to abstain from a certain act or to take certain order with certain property in his possession or under his management." Here the property was not in the possession or under the management of the Sub-Inspector of Police. The Magistrate had no authority to put him in possession of that property and direct him to harvest the crop. This illegality of the order, however, has no bearing in the present case, because it does not appear that the Sub-Inspector did, in fact, attempt to carry out this direction. The direction is clearly separable from the rest of the order of the Magistrate, and does not vitiate the order as a whole.

The order of the learned Sub-divisional Magistrate is also challenged on the ground that the dispute related to possession of land and should have been dealt with u/s 145, Criminal P.C. I agree that the procedure followed by the Sub-divisional Magistrate was not entirely correct. There was a dispute regarding possession and it was improper for him to decide a matter, which he himself describes as "rather doubtful," in a summary proceeding u/s Hi, Criminal P. C. u/s Hi, however, he had the authority for "immediate prevention or speedy remedy" to direct the party to keep away from the land. The order passed by the Magistrate to this effect was with jurisdiction. Even if he acted improperly in making this his final order and not going on to decide the matter u/s 145, Criminal P.C., it would not make his order without jurisdiction. The accused, there fore, by acting contrary to that order, did contravene the provisions of Section 188, Penal Code.

As regards the second point, it is urged that all that appears from the petition filed by the complainant before the Sub-divisional Magistrate on 10th February 1942, and from the evidence, is that the accused persons went near the land and that it was only the complainant and his men who actually went to the land. It is clear from the finding of the Magistrate in this case, however, that the accused persons did go to the spot, and by threatening the complainant, they prevented, the complainant from harvesting the crop. In doing so, they were clearly acting contrary to the order of the Magistrate u/s 144. It may be that they did not actually step on the land to which the order related. But merely on this technical ground I would not hold that the order of the Magistrate had not been disobeyed.

The only point in which I think the order of the convicting Magistrate calls for interference is the sentence. The trouble in this case arose through an improper order passed by the learned Sub-divisional Magistrate and I do not think that such a big fine as has been imposed is called for.

On the above grounds I would dismiss this petition, except for the direction that the fines be reduced to Rs. 20 in the case of each accused, and in default of payment, rigorous imprisonment for two weeks.