SIDDEGOWDA AND Vs. KULLEGOWDA

JUDGEMENT

(1.) The respondent Kullegowda filed an application under Section 144, Criminal P. C., in the Court of the Special First Class Magistrate, Nanjangud, alleging that he had leased some lands of his in Hunasanalu village to petitioner 2, that he wanted to sell away his lands and house in that village and go away to another village, that petitioner 2 and his eldest brother, petitioner 1, were pressing him not to sell them but to allow them to continue as lessees, that he had refused that he had removed his own family members to the neighbouring village and came back on 7-5 50 to take away his 4 carts and other movables from his house and that the petitioners obstructed him and threatened him with sickles and other weapons and did not allow him to enter his house, that he approached the police of Nanjangud and they asked him to get an order of the Court before they could help and that accordingly the Court should grant an ex parte order in his favour directing the petitioners not to interfere with his opening the lock of the house and removing the movables contained in it. To the application a schedule of the house and a long parti of as many as 33 items of movables including buffaloes, cows and calves, vessels, boxes etc., was annexed. This application was presented on 8-5-1950.

(2.) The learned Magistrate formally examined the respondent on oath and immediately ordered on the margin of the application itself that the petitioners

(3.) I think that the learned Magistrate who originally passed the order was entirely in error in doing so. He does not appear to have even read Section 144 carefully before so doing. He assumed that the respondent was the owner of the moveable and immovable properties as alleged by him, that he was fully at liberty to remove them and by an ex parte order placed it beyond the powers of the petitioners to exercise or defend their own legal rights if any to their own properties and gave permission in the nature of carte blanche to the respondent to remove the articles whether they were his own or of others. He failed to see that an order under Section 144 was of an extraordinary character and could only be passed in serious and urgent cases where the Magistrate was satisfied that there were sufficient grounds to proceed under that section and immediate prevention or speedy remedy was desirable. He failed also to see that in his order he had to state the material facts of the case and that he could direct the opposite party to abstain from 'a certain act' only if he considered that such direction was likely to prevent obstruction or annoyance to any person lawfully employed or danger to human life, or safety or a disturbance of public tranquillity or a riot or an affray. Without even calling for a police report and in the absence of even an allegation in the petition much less prima facie evidence, either as regards the urgency of the matter or its necessity to avoid a breach of the peace or the title and rights of the respondent, he chose to issue a drastic order which was calculated to lend the entire weight of the authority of the Court and the might of the police to the respondent to do what he liked without any interference whatsoever.