Sheikh Amir Ali vs Dukhan Momin

Jwala Prasad, J.—This is an application against an order of the District Magistrate, dated the 5th December, 1927, dismissing an application of the petitioner to set aside an order of the Sub-Divisional Magistrate of Monghyr, dated the 8th October, 1927, and filing a complaint against the petitioner u/s 182 of the Indian Penal Code. On that very day the District Magistrate filed a written complaint before the Sub-Divisional Magistrate in which he stated that the petitioner in his application u/s 144(4) of the Code of Criminal Procedure, dated the 28th October, 1927, before the District Magistrate against Dukhan Momin "claimed to be the kaimi tenant in possession of 6 bighas 2 katha of land" and complained against Maulvi Muhammad Mobin, Honorary Magistrate, "of having conspired with Khartar, son of Dukhan Momin, to dispossess him wrongfully" and "having maliciously influenced the Police to put a false report in favour of Dukhan Momin" praying "that the warning order received by him from Maulvi Abdul Majid should be rescinded." Continuing, the District Magistrate says in his complaint that the petition of the applicant was fully enquired into by Babu Nalinindra Lal Basu whose "report of the 2nd December, 1927, proves that the allegations are entirely false and that Sheikh Amir Ali is not in possession of the lands in question. It is clear that the information given to him by the accused person in his petition of the 28th October, 1927, was totally false and was intended to cause me to take action by rescinding Maulvi Abdul Majid''s warning order which I should not have taken if the true state of facts were known to me. I, therefore, file this complaint u/s 182, Indian Penal Code, in the Court of the Sadar Sub-Divisional Officer."

The land in dispute is recorded in the Survey Record of Rights published in 1910 in the name of the petitioner Sheikh Amir. In 1922 the proprietor of the share in which the land in dispute is situate, sold his proprietary interest to Dukhan Momin, the opposite party. Dukhan''s case is, as disclosed in the Police report of the 2nd October, 1927, that petitioner Sheikh Amir surrendered his holding and then the land came to be held by one Pannu Momin, and after changing hands several times, it came to be held by Dukhan; and thus Dukhan now claims to be in direct possession of this land, having acquired the kaimi right and purchased the proprietary interest also.

On the 25th September, 1927, Khub Lal Gope, chaukidar of the village Amahar Kita, lodged a saneha before the Police of Lakhiserai of an apprehension of a breach of the peace on account of the rival claims of the petitioner Sheikh Amir and the opposite party Dukhan Momin.

The Police Sub-Inspector submitted a report on the 2nd October, 1927, stating that though the land was originally recorded in the name of Sheikh Amir he had surrendered it and that the land in question at present is in possession of Dukhan Momin. Accordingly he asked for an order under Sections 107 and 144 of the Code of Criminal Procedure against the petitioner.

On the 8th October, 1927, the Sub-Divisional Magistrate passed the following order:

The Police report does not give the khatian and khasra numbers. So I cannot understand what plots were covered by the khatians shown by the first party. The first party is the recorded tenant. It has not shown any rent receipt nor the original khatian. The second party''s case is that the first party gave istifa long ago. Then others came in. Dukhan has got the land six years ago by purchase from the malik, and he claims to be in possession. The report does not disclose any real apprehension of a breach of the peace. Action u/s 107, Criminal Procedure Code, is out of the question. Warn Amir Ali, etc. He should bring a regular case if so advised.

Aggrieved by this warning order, the petitioner moved the District Magistrate by his petition dated the 28th October, 1927. In that petition he asserted that the "land in dispute is in his possession and the opposite party in collusion with Maulvi Muhammad Mobin, Honorary Magistrate of Lakhiserai, his landlord, is creating trouble, is refusing to grant receipts for payments of rent, he having purchased the proprietary interest in the land and is disturbing the possession of the petitioner and that the Police in collusion with the said Maulvi Muhammad Mobin submitted the report on the 2nd October, 1927, for proceeding against the petitioner under Sections 107 and 144 of the Code of Criminal Procedure. The petitioner contended in that petition that the second party, Dukhan Momin, was not in possession of the land and that the warning order of the Magistrate was wrong, illegal and without jurisdiction for various reasons set forth in the petition. He concluded his petition in the following words:

Your humble petitioner, therefore, being aggrieved and dissatisfied with the above order warning the first party and subsequently refusing to alter the same begs to file this petition of motion u/s 144(4), Criminal Procedure Code, on amongst others the following grounds.

On that very day the District Magistrate passed the following order:

Heard Pleader for petitioner. He objects to the order of the learned Magistrate warning him. It is not clear what the learned Magistrate intended to warn him not to do. Call for the record with a brief report from the Magistrate for 4-11. I will decide thereafter whether to admit the motion.

On the 3rd November the Sub-Divisional Magistrate submitted his report in which he explained the reason of his having passed the warning order. He says "The warning given to him was to the effect that if he really considered himself to be the rightful tenant he must establish it in a civil suit, and regain his lost possession in that way; and that if he attempted to take possession forcibly again, preventive measures Would have to be taken against him."

On receipt of this report the District Magistrate passed his order on the 4th November dismissing the petitioner''s motion summarily. Next day the petitioner filed another petition complaining against the District Magistrate''s order of dismissal without having heard the petitioner. When the application was moved the Pleader for the petitioner asked for a local inquiry by the Magistrate and offered to pay the cost. The District Magistrate passed the following order: "Further petition made that the Police report is dishonest. The learned Pleader asks for a local enquiry by a Magistrate and offers to pay the cost. If petitioner deposits Rs. 20 Sub-Divisional L Officer Sadar will please depute a Magistrate to enquire locally within the next month. If the petitioner''s case is found to be true his deposit will be returned. Otherwise the officer''s travelling allowance will be paid out of it."

This local inquiry was held by Babu N.L. Basu, Deputy Magistrate, who sent his report on the 2nd December, 1927, in which he came to the conclusion that the petitioner had surrendered the holding and was not in possession of the land for some time, that the land was in possession of the opposite party, and that the petitioner''s allegations of conspiracy between Maulvi Muhammad Mobin, Honorary Magistrate, and the opposite party as well as the Police are false. The Magistrate, as observed above, on the 5th December, 1927, dismissed the petitioner''s motion u/s 144(4) and filed a petition of complaint against the petitioner u/s 182 of the Code.

At the outset I must say that if the prosecution u/s 182 would lie upon one having filed an appeal or motion to a superior Court aggrieved by the order of the Subordinate Court simply because his claim is not substantiated, then in almost every case of appeal or motion a prosecution u/s 182 should lie. The petition of the 28th October followed by the petition of the 5th November were directed against the order of the Sub-Divisional Magistrate of the 8th October, 1927, warning the petitioner from going to the land in question. The Sub-Divisional Magistrate of the 6th October, 1927, refused to initiate a proceeding under Sections 107 and 144 as prayed for by the Police and yet passed a warning order against the petitioner not to go near the disputed land. This seems to me to be anomalous. The chaukidar''s saneha of the 25th September, which is the foundation of the present proceeding by the District Magistrate, referred to a dispute between the parties of a rival claim as to the possession of the land in dispute. The petitioner tenaciously maintains throughout that he has been in possession of the land and shows in his favour an entry in the finally published Record of Rights of 1910. It is admitted that the land in dispute was in possession of the petitioner Sheikh Amir from long before the time of the Record of Rights was prepared in 1910. The petitioner has, therefore, the presumption of the continuity of his possession on account of the aforesaid entry in the Record of Rights up to the present moment. The opposite party Dukhan says that the petitioner lost his possession on account of an istifa having been given by him in favour of the landlord. There is no documentary evidence is support of the case of the opposite party, Whether the petitioner was in possession of the land in dispute or not he raises a bona fide dispute of possession, and the only course open to the Magistrate was to proceed u/s 149 of the Code of Criminal Procedure in order to finally determine and declare the possession of one of the parties or to attach the land and thus put an end to the danger of the breach of the peace. He could, of course, take steps under Sections 107 and 144 of the Code of Criminal Procedure to prevent an immediate danger to the breach of the peace; but he was bound to start a proceeding u/s 145, as, according to the suneha of the chaukidar and the report of the Police, there was an apprehension of a breach of the peace about land. Instead of doing that, the Sub-Divisional Magistrate warned the petitioner against his going to the land. The warning order was passed against the petitioner, who claims to have been in possession of the property in dispute and it could not be passed without having first determined regularly in a proceeding u/s 145 as to the possession being with the opposite party Dukhan. The petitioner was, therefore, justified in moving the District Magistrate under Clause (4) of Section 144 to rescind or set aside the order of the Sub-Divisional Magistrate of the 8th October, 1927.

In petition of the 28th October, which is the subject-matter of complaint before the District Magistrate, the petitioner again reiterated his claim of possession over the land in dispute. No doubt he charges Maulvi Muhammad Mobin, the Honorary Magistrate and landlord of the village, as having sided with the opposite party Dukhan "his tenant and friend" and lent his influence and support as having brought Police on his side and thus getting report of the Police submitted in favour of Dukhan; but this is only a belief of the petitioner, the gravamen of his grievance being that the Police reported for a proceeding u/s 107 against him when there was a bona fide dispute of possession with respect to the land in question. The District Magistrate, instead of disposing of the motion of the petitioner u/s 144(4) in a legal way, called for a report from the Sub-Divisional Magistrate as to what he intended to mean by the warning order and then summarily dismissed the motion without having heard the petitioner on the merits of his application. The District Magistrate perpetuated his error in asking for a local enquiry by accepting the submission of the Pleader for the petitioner on the 5th November asking for a local inquiry by a Magistrate upon the payment of cost by the petitioner.

Again when the report of Mr. Bose was submitted the District Magistrate on the 5th December, 1927, disposed of the motion upon the ground that the allegations contained therein were not substantiated. In the petition of the 5th November the petitioner had complained against the District Magistrate''s order of the 4th November and prayed for his being heard in the matter. Therein also he boldly asserted that there was a bona fide dispute regarding possession of the land and proceedings u/s 144 were improper and that proceedings u/s 145 should have been instituted. The District Magistrate ignored this and went upon the report of Mr. Bose to the effect that the petitioner was not in possession of the land. His claim has not been judicially determined and yet preventive orders were passed against him of the nature of a warning for which there is no legal sanction. It is only an administrative and executive order. The District Magistrate goes further and files a complaint u/s 182 of the Indian Penal Code against the petitioner and his grievance is that the false allegation of collusion between the Sub-Inspector and the Honorary Magistrate, Maulvi Muhammad Mobin, and the petitioner and the false claim of possession of the land in dispute were intended to cause the District Magistrate to take action "by rescinding Maulvi Abdul Majid''s warning order" which he should not have taken if the true state of facts were known.

The only way in which the Magistrate, in the circumstances of the case, could have known the true state of facts was by having a regular inquiry u/s 145 of the Code of Criminal Procedure. The petitioner bad the khatians in his favour showing his possession at least of 1910 and the opposite party had to displace the presumption in his favour by actually proving that he had surrendered the holding and that the opposite party had acquired the tenancy rights in the land in question. The fact that he had purchased the milkiat right does not give him any claim to direct possession over the land in dispute when it was a raiyati land recorded in the Survey Record of Rights. For that the opposite patry has a long history to tell tracing his possession through five or six persons before him. I do not know the averments in the petition of the 28th October or of the 5th November would have induced the Magistrate to take action u/s 144(4). The petitioner''s grounds for setting aside the order of the Sub-Divisional Magistrate were also based upon legal considerations.

In the case of Empress v. Sunt Lal 41 P.R. 1881 Cr. it was held that "the accused who makes a false statement in his petition of appeal cannot be held to have committed an offence u/s 182 of the Indian Penal Code, even assuming that the false statement was made with the object of inducing and that it did induce the Appellate Court to send for the record of the case, as it cannot be said that the Court was thereby induced to do what it ought not to have done."

The case followed an earlier decision of that Court: Empress v. Gokal 34 P.R. 1879 Cr.

I am in full accord with the view taken in the aforesaid cases, and, as I observed at the very outset, if a prosecution u/s 182 would lie in this case, then there would not be a single case in which an appellant or petitioner in revision will not be made liable for prosecution. This case seems to me much stronger than cases referred to in the aforesaid rulings. Here the warning order of the Sub-Divisional Magistrate u/s 144 was obviously erroneous apart from whether the petitioner was or was not in actual possession of the land in dispute and whether his charge of collusion against the opposite party, the Sub-Inspector and Maulvi Muhammad Mobin was well-founded or not. Upon the Police report of the 22nd October, 1927, there was case for an action u/s 145 of the Code of Criminal Procedure and not for a warning order u/s 144. Therefore, the District Magistrate in sending for the record of the case upon the application of the petitioner in this case was not induced solely by the allegations made in the petition of the 28th October. His order of the 4th November itself shows that he thought that on the face of the order of the Sub-Divisional Magistrate it was open to objection.

Accordingly I set aside the order of the Magistrate dismissing the application of the petitioner before him u/s 144, Clause (4) and consequently I set aside the warning order of the Sub-Divisional Magistrate dated the 8th October, 1927, u/s 144. Also I set aside the order of the Magistrate starting proceeding against the petitioner u/s 182 of the Indian Penal Code, and I quash the entire proceeding in this respect.