Sri. Ratanlal Patni vs Shri Sudarshanlal Jain and Another

K.N. Saikia, J.—The Petitioner, as first party, obtained an order u/s 144(2) Code of Criminal Procedure from the Sub-Divisional Magistrate, Imphal-West on 1.6.83 restraining the 2nd party, the instant Respondents and their agents from entering into the suit premises, namely, a shop or from doing day act by way of obstructing the first party in possessing the same for a period of (two) months with offset from the date of the order. The learned Magistrate also directed the Officer-in-Charge, Imphal Police Station or any other officer authorized by him to take possession of any Article or stocks found lying inside the disputed shop while removing the lock and key by preparing a list in presence of the witnesses or entrust the same to the zimma of a reliable person in the locality or to the first party on execution of a bond for safe custody. The order was passed ex parte u/s 144(2) Code of Criminal Procedure "in view of the emergent nature of the case".

The Respondents did not move the Sub-Divisional Magistrate for rescinding the ex parte order, but went in revision to the Sessions Judge. The Petitioner also instituted a suit being Original Suit No. 18 of 1983 in the Court of Subordinate Judge No. 2, Manipur against the Respondents and two others for declaration of title and perpetual injunction in respect of the disputed premises and the learned Subordinate Judge passed an ex parte temporary injunction on 14.6.83 in Judi. Misc. Case No. 38 of 1983 directing status quo as on that date to be maintained until further orders.

The learned Sessions Judge by the impugned order dated. 14.6.83 passed in Criminal Revision No. 44(2) of 1983 allowed the revision, set aside the S.D.M.''s order dated 1.6.83 and further directed that the seized articles and the disputed shop be re-delivered to the Respondent No. 1 within three days from the communication of the order. Hence this petition.

The tenure of the order dated 1.6.83 u/s 144(2) Code of Criminal Procedure was for two months with effect from the date of the order. When the Sessions Judge pissed the impugned order dated 14.6.83, the aforesaid order u/s 144(2), Code of Criminal Procedure was extent and it would have expired on 1.8.83. This petition was filed on 21.6.83 and during the pendency of this petition the tenure of the order u/s 144(2) has expired and it exhausted its force. Even if the Sessions Judge''s revisional order is to be set aside it will not revive the order u/s 144(2) Code of Criminal Procedure. This petition has, therefore, become infructuous and it has to be rejected as such.

The Petitioner, however, contends that the learned Sessions Judge''s direction that the goods seized and removed by police be re-delivered to the Respondent No. 1 was without jurisdiction and it amounted to deciding the question of title over the seized articles.

The learned Sessions Judge observed in the impugned order that taking advantage of the direction of the S.D.M.''s Imphal West, made in the order u/s 144(2) Code of Criminal Procedure all the properties belonging to the firm, which were found in the disputed shop, had been seized and thereafter packing the same in 46 gunny bags removed. He directed that the goods so seized and removed by the police be re-delivered to the Respondent No. 1 who was in lawful custody of the same when dispute arose, staging that the Sessions Judge while discharging his duty u/s 397 Code of Criminal Procedure has the same power that of the High Court and as such he had jurisdiction to pass such an order.

Mr. L. Nandakumar Singh, the learned Counsel for the Respondents, submits that u/s 397 Code of Criminal Procedure the Sessions Judge has the same power as the High Court has and the order for restoration of the property was within jurisdiction of the Sessions Court. Section 399 Code of Criminal Procedure deals with the Sessions Judges powers of revision. Under Sub-section (1) thereof, in the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. Section 401 Code of Criminal Procedure deals with High Court''s powers of revision. Under Sub-section (1) thereof, in the case of any proceeding the record of which �as been called for by itself or which otherwise comes, to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 of on a Court of Session by Section 307.

When an order u/s 144 Code of Criminal Procedure, directing any person to abstain from certain act or to take certain order with respect to certain property in his possession or under his management, is passed and in compliance with the order the party so directed abstains from that act or takes certain order with respect to certain property in his possession or under his management and such ah order is subsequently set aside by a Court, the question of maintenance of Status quo ante, i.e. restoration of the state of thing that prevailed at the time of passing the impugned order u/s 144 Code of Criminal Procedure often arises. If the order it simply set aside without restoration of status quo ante, the party whose right was affected by the order, may find himself in an unjust position, For instance, as in the instant can, the goods found to the disputed shop were to be seized and removed by police and while setting aside that order if the revisional Court does not restore properties to the person who was entitled to those goods at time of carrying out the direction, be may be placed in a helpless position. ''Actus curiae neminem gravavit'' An act of the Court shall prejudice no one. If the order passed by the Court affected the right of the party and that order is subsequently set aside, justice demands that status quo ante should be restored. Again, when the impugned order giving the direction is set aside parties automatically relate back to their respective prior positions and, in fact, any further order to that effect does not travel beyond that position. The order for restoration of status quo ante does not involve the question of determination of the rights between the parties. It is the result of setting aside of the order u/s 144 Code of Criminal Procedure The Sessions Judge, while exercising powers u/s 397 read with Section 399 Code of Criminal Procedure has the jurisdiction to pass such an order. There is no doubt that the appellate Court can pass an order for restoration.

However, when circumstances may have changed between the passing of the order and its setting aside in revision, before ordering return of the seized property the aggrieved party must be given an opportunity of being heard. In State Bank of India Vs. Rajendra Kumar Singh and Others, in context of Sections 517 and 520 of the Code of Criminal Procedure (1898) the Supreme Court held that though the statute did not expressly require a notice to be issued or a hearing to be given to the parties adversely affected, there was in the eye of law a necessary implication that the parties adversely affected should he heard before the Court makes an order of return of the seized property and an order of the High Court revising the order of the Sessions Court directing disposal of the property u/s 517, without giving notice to the person to whom the property was directed to be delivered by the Session Court was held to have been vitiated by law. Observance of the same procedure in a case u/s 144 Code of Criminal Procedure would be Just and proper.

There is no doubt, as was ruled i Md. Gulam Abbas and Another Vs. Md. Ibrahim and Others, that the kind of orders mentioned in Section 144 are obviously intended only to prevent dangers to life, health, safety or peace and tranquility of members of the public. They are only temporary orders which cannot last-beyond two months from the making thereof as is clear from Section 144(6) of the Cods. Questions of title cannot be decided here at all. But previous judgments on them may have p. bearing on the question whether, and if so, what order should be passed u/s 144 Code of Criminal Procedure It was reiterated in Acharya Jagdishwaranand Avadhuta and Others Vs. Commissioner of Police, Calcutta and Another, that the nature of the order u/s 144 Code of Criminal Procedure is intended to meet emergent situation and the order u/s 144 is not intended to be either permanent or semi-permanent in character. The restoration, after setting aside the order u/s 144 Code of Criminal Procedure is not based on title but in the principle of restoration of status quo ante so that the action of the Court would prejudice no one. In appropriate cases writ petition may lie.

In the intant case admittedly the parties are already before the civil Court of the same subject matter and it is stated at the Bar that ah order for maintenance of status quo was already obtained from the civil Court. The matter thus being in the seisin of the civil Court ho interference with the impugned order in so far as restoration of the prosperity is concerned, is called for.

In the result this petition is found to be devoid of any merit and it is rejected. The Rule is discharged. The order dated 21.6.83 passed in Criminal Misc. Application No. 14 of 1983, stands vacated.