TATURAM SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) This petition is for revising an order under Section 144, Cr. P. C., passed by the Sub-Divisional Magistrate of Nawapara on 29-4-1950, restraining the general public from purchasing or exporting Kendu leaves from Nawapara thana and exempting one Ramji Purushottam alone from the operation of the said order. No ad interim order appears to have been passed and the affected parties were not given an opportunity of making their submissions before the Magistrate prior to his making the order absolute. He acted on the report of the police to the effect that Ramji Purushottam was the contractor for the purchase of Kendu leaves in Khariar estate and that there was a likelihood of serious breach of the peace if other persons were permitted to purchase the said leaves in that estate. It further appears from the police report that the zamindar of Khariar was claiming the exclusive right to sell Kendu leaves even of those trees which grow on the tenants' holdings though this right was being recently Taturam Sahu vs. The State of Orissa (21.08.1950 -ORIHC) Page 2 of 4 (21.08.1950 -ORIHC) Page 2 of 4 challenged by some of the tenants. Thus though the order may at first sight appear to be the result of friction, between Ramji Purushottam on the one hand and other rival purchasers of Kendu leaves in Nawapara thana on the other, in reality the dispute is primarily between the zarnin-dar of Nawapara on the one hand and his tenants on the other as regards their respective rights to sell Kendu leaves growing on the lands of the tenants. In a dispute of this type where rights of the parties are involved the learned Magistrate should, in all fairness have issued an ad interim order restraining both parties and then after hearing them in Court made the order absolute against one party. The learned Magistrate has not done anything of this kind nor has he cared to scrutinise the Wajib-ul-arz which seems to be the main basis of the claim made, by the zamindar to sell Kendu leaves growing within his zamindari. We do not wish to say anything as regards the respective rights of the parties to sell Kendu in Nawapara thana. This may become a subject-matter of a regular litigation in future.

(2.) Mr. Ghose's main contentions in favour of the petitioner are: (i) such a general order is outside the scope of Sub-section (3) of Section 144, Cr. P. C., and as such is invalid and (ii) in any case such an order was highly improper in view of the clear directions given by this Court in Cr. Revs. Nos. 218 and 228 of 1949 to the effect that in future if there was apprehension of breach of the peace the learned Magistrate should start proceedings either under Section 107 or under Section 145, Cr. P. C., as the case may be and not pass summary orders of this type.

(3.) The first contention of Mr. Ghose is based on a construction of Sub-section (3) of Section 144 which says that an order under that section may be directed "to the general public when frequenting or visiting a particular place". 'Mr. Ghose has urged that the word 'place' must be given a fairly restricted meaning especially when it is preceded by the words 'frequenting' or 'visiting' and that an order addressed to the general public in a small locality such as a portion of a town or a village may be a valid order but an order addressed to the general public of such a large area as Nawapara thana was clearly outside the scope of that section. In support of this argument he has mainly relied on -- 'Moti Lal G. v. Emperor', AIR 1931 Bom. 513 -- 'Abdul Majid v. Nrependra Nath', A. I. Rule 193-1 Cal. 393 and some other decisions, where the expression 'place' has been given a somewhat restricted construction. But later decisions have taken a different view and have gone to the extent of saying that there is not muck distinction between a place and an area and so long as it is clearly specified and well-defined in the order there is no illegality in including a large area such as a district within the scope of an order under Section 144, Cr. P. C. For instance in -- 'Abdul Karim S. v. Emperor', A. I. Rule 1937 Lah 80 an order addressed to the general public of Lahore district was held to be valid. The entire law on the subject has been fully dealt with in a Pull Bench decision of the Allahabad High Court in -- 'Emperor v. Afaq Hussain', A. I. Rule 1941 All 70 where it was held that a particular place referred to in Section 144 (3), Cr. P. C. may be a large area & all that is necessary is that the place should be so sufficiently defined that the public is reasonably notified of its extent. With respect, I am inclined to agree with the aforesaid decision and to hold that the order of the Magistrate cannot be impugned solely because it is ad-| dressed to the general public of Taturam Sahu vs. The State of Orissa (21.08.1950 -ORIHC) Page 3 of 4 (21.08.1950 -ORIHC) Page 3 of 4 Nawapara thana.