LAKSHMAN HEMRUL Vs. MANNAN MOLLA

JUDGEMENT

(1.) This Rule is at the instance of the first party Petitioner Lakshman Hemrul for setting aside the impugned orders and for quashing the proceedings under Sec. 144 of the Code of Criminal Procedure pending before Sri A. N. Bhattacharya, Sub -Divisional Magistrate, Howrah, in Misc. Case No. 230 of 1969.

(2.) The facts leading on to the Rule may be put in a short compass. An application under Sec. 144 of the Code of Criminal Procedure was filed on May 23, 1969, in the Court of the learned, Sub -Divisional Magistrate (S), Howrah, by the first party Lakshman Hemrul against Mannan Molla and Hannan Molla, second party, stating that the first party is a bhag -chasi who had grown jute on the disputed land in the current year, but the members of the second party who are desperate persons were bent on dispossessing him forcibly from the lands on the basis of an alleged bandobasta and on May 18, 1969, they even tried to damage the jute plants standing on the land. In view of a serious apprehension of breach of peace it was prayed for that the -members of the second party be restrained under Sec. 144 of the Code of Criminal Procedure from entering into the disputed land. The learned Sub -Divisional Magistrate by his order of the same date directed the O.C. of the local Police Station to enquire and report and the Police submitted a report on August 12, 1969, wherein it was found that the first party was a bhag -chasi who had grown jute on the disputed plots and that it was the members of the second party who were creating troubles by trying to dispossess the first party forcibly. It was further stated that the members of the second party who are troublesome persons may be bound by a restraint order. On going through the said report, the learned Magistrate was satisfied that there was an apprehension of breach of peace and by his order dated August 20, 1969, drew up proceedings under Sec. 144 of the Code of Criminal Procedure restraining the members of the second party from entering into the disputed land and to show cause, if any, by September 10, 1969. In the meanwhile, the second party showed cause by an application filed on August 23, 1969, which was not the date fixed, and prayed for vacating the order under Sec. 144 of the Code on the ground that the members of the second party were in fact in possession. The records along with the application were put up on August 26, 1969, which was an intermediate date, and the learned Magistrate, on going through the cause shown and the documents filed, observed that the members of the second party have also a rightful claim over the disputed plots and, in that view, restrained both the parties from entering into the disputed land till the disposal of the proceedings under Sec. 144 of the Code of Criminal" Procedure. This was an ex parte order passed on an intermediate date. On August 27, 1969, the first party filed an application praying that the second party men may be prosecuted under Sec. 188 of the Indian Penal Code for the violation of the order passed under Sec. 144 of the Code of Criminal Procedure by entering into the disputed land and cutting the standing jute plants on August 25, 1969. The learned Magistrate by his order dated August 28, 1969, called for a report from the Police and on September 10, 1969, the second party filed some documents in support of their claim of possession over the disputed land. The orders referred to above as also the proceedings pending before the learned Sub -Divisional Magistrate were impugned by the first party and the present Rule was obtained.

(3.) Mr. Sanat Kumar Rakshit, Advocate appearing in support of the Rule, made a three -fold submission. The first contention of Mr. Rakshit relates to the procedure, viz. that the ex parte order -passed by the learned Magistrate on August 26, 1969, restraining both the parties from entering into the land, is bad inasmuch as the same was passed on an interim date and without affording an opportunity to the first party of being heard. It was also contended in this context that in view of the report by the Police dated August 12, 1969, and the initial order passed by the learned Sub -Divisional Magistrate himself on August 20, 1969, restraining the second party from entering into the disputed land, the ex parte order was not tenable on merits. Mr. Rakshit next contended that the first party being a bhag -chasi in possession of the disputed land, the proceedings under Sec. 144 of the Code of. Criminal Procedure are unwarranted and untenable. The third and last submission of Mr. Rakshit is one of law, viz. that the proceedings under Sec. 144 of the Code' of Criminal Procedure are unwarranted and untenable because the dispute concerned land or water and the boundaries thereof enjoining a proceeding under Sec. 145 of the Code of Criminal Procedure. Mr. Bikash Chandra Sen, Advocate (with Mr. Chinmoy Chowdhury, Advocate) appearing on behalf of the second party, opposite parties, ably argued the case and besides replying to the three -fold contentions made by Mr. Rakshit he raised two preliminary objections. The first such objection is that the period of 'two months from the making thereof, under Sec. 144(6) of the Code of Criminal Procedure, having expired the Rule has become infructuous and should be discharged. The second preliminary objection by Mr. Sen is that the present Rule is not maintainable because the first party Petitioner has not moved the Court below, in the first instance, under Sec. 144(4) of the Code for rescinding of altering any order made under this section. In reply to the three -fold contentions made on behalf of the first party Petitioner, Mr. Sen submitted in the first place that the procedural defect complained of because of the ex, parte order passed on August 26, 1969, is more technical than real causing no ultimate prejudice to the first party inasmuch as he would have the opportunity of being heard on merits and, accordingly, on this ground alone the proceedings should not be quashed. Mr. Sen next submitted that there is no bar in law to the institution of a proceeding under Sec. 144 of the Code against a bhag -chasi in cases of apprehended dangers under chap. XI of the Code of Criminal Procedure and for a speedy prevention thereof. Mr. Sen finally submitted, in reply to the third and last submission of Mr. Rakshit on merits, that proceedings under Sec. 144 of the Code of Criminal Procedure would not be barred merely because proceedings under Sec. 145 of the Code did also lie on the same facts and the existence of one did not rule out the legality or propriety of the other proceedings. Mrs. Joytirmoyee Nag, Advocate appearing on behalf of the State, adopted the submissions of Mr. Sen on merits as also the two preliminary objections raised by him. Mrs. Nag further contended that these are short and summary proceedings under chap. XI of the Code of Criminal Procedure and the dominant consideration is the prevention of apprehended danger in urgent cases. The second preliminary objection raised by Mr. Sen to the maintainability of the present Rule under Sec. 439 of the Code of Criminal Procedure because the party aggrieved has not availed, in the first instance, the provisions under Sub -section (4) to Sec. 144 of the Code for rescinding or altering the impugned order passed under Sec. 144 of the Code is of some importance and, in view of the conflicting decisions on the point as referred to by the learned Advocate appearing on behalf of the respective parties, this Court requested Mr. Dinesh Chandra Roy, a senior member of the Bar, to appear as amicus curia for assisting this Court to come to a proper decision, and Mr. Roy was good enough to agree.