BHABA KANTA BHARALI Vs. RAMCHANDRA BHARALI

JUDGEMENT

(1.) This is a criminal revision against the judgment and order dt. 1-9-81 passed by the Sessions Judge, Jorhat setting aside the order dt. 17-12-80 passed by the Executive Magistrate in a proceeding under S.147 of the Cr. P.C. Learned Magistrate had declared possession of the property in favour of the petitioner but the learned Judge quashed the proceedings.

(2.) Before dealing with the merits of the case I would like to state a few words as to the use and abuse of proceedings u/ss.133, 145 and 147 of the Cr. P.C. for short "the Code".

(3.) The provisions of Ss.129 to 148 of "the Code" are meant for dealing with situations which call for "the maintenance of public order and tranquillity" by the Executive Magistrates. The provisions of Ss.129 to 132 are invoked to deal with "unlawful assembly". Sections 133 to 143 of "the Code" fall under the head "public nuisances". The provisions of Section 144 deal with "urgent cases of apprehended danger" whereas Ss.145 to 148 of "the Code" deal with disputes relating to immovable property. In the case in hand the relevant provisions which require our attention are Ss.133 and 147 of "the Code". Every third case is a proceeding under these Sections and in most cases the parties are kith and kin. They come from the poor bracket. They fight litigations up to the High Court and the vanquished go back to the civil court for starting another innings of legal battle. Apart from the strained relationship and ill feeling generated between the neighbours and/or relatives, huge expenditures are incurred in the proceedings and sufferers are the poor. Suits in Civil Courts under the Specific Relief Act have become rare as the parties obtain readymade preliminary orders u/ss.133, 145 and 147 of "the Code". It is difficult to obtain an injunction in a civil action because the party must satisfy the court about the prima facie case, the balance of convenience and irreparable injury. So many hurdles are to overcome for obtaining an order of injunction. But to initiate actions u/ss.133, 145 and 147 of "the Code" to coax and trouble the neighbour or the relatives, drag them to court and let them suffer, the party is just to state that the adversary is dangerous and daring persons, and, there is apprehension of a breach of the peace. The combat starts which terminates in the High Court. In the process the parties, who are mostly the rural poor suffer agonies, miseries, anxieties, loss of money, time and energy. The time has come when the Executive Magistrates should be careful and circumspect while drawing up proceedings under these sections. They must bear in mind the impact of the proceedings on the poor litigants and the adverse effects on the parties. The ultimate winner in such a proceeding is a nominal winner, in fact, a real loser in money, time, expenses, apart from buying strained feeling with neighbours and relatives. When the door to obtain reliefs under the Specific Relief Act is wide open the Executive Magistrate should direct the parties to ask for the relief in civil court. The proceedings are just stop-gap arrangements to avoid a breach of the peace, tranquillity or to prevent public nuisances and disputes which affect "law and order". If such contingency can be avoided by directing the police to take charge of the situation, the Magistrate ought to refer the parties to civil court. However, there may be exceptional and special cases, say, where the poor is oppressed by the rich and the powerful. It may be that in some cases it might be difficult for a poor party to fight out civil litigation unless he gets protection from the Magistrate. It is necessary to scrutinise each case carefully and then to initiate a proceeding. However, it must be borne in mind that the very object and the purpose of the provisions are to deal with unlawful assembly, prevent public nuisance or apprehended danger so that the even tempo of the society is maintained. It is for the Magistrates to consider as to whether they should meddle with the private disputes between the parties. The domestic disputes or private disputes between two parties asserting their respective civil rights should go to civil court, unless the Executive Magistrate considers it to be imperative to take recourse to the provisions of "the Code" to maintain law and order, public tranquillity etcetera. If one brother asserts his civil right in respect of a property and the other disputes the same, there may be strained relationship between them. Should such matter enter into court of the Executive Magistrate for getting a stamp as to who should continue to exercise his right? If the even tempo of the community is not disturbed or jeopardized, should the dispute come to the criminal court? The assertion of private rights may not disturb the even tempo of the society. There may be private feud, or disputes for which action under the Code may not be called for. To avoid disputes of serious nature like the breach of the peace or tranquillity or disputes which go beyond the four comers of private disputes or where there is possibility of head breaking or injury or disturbance of law and order, learned Magistrates should take up the summary actions. The proceedings are just to maintain peace and tranquillity and the orders rendered under these sections are merely temporary orders. The orders of the Courts are conterminous with the judgment or decree of the Civil court. No sooner the Civil court declares the right of the parties the temporary orders rendered by the courts u/ss.133, 145 and 147 of the Code come to an end. Learned Executive Magistrates are public servants. They are fully aware of the conditions of the people and the telling effects of the proceedings on the poor rural litigants. Accordingly, before entertaining such proceedings the Executive Magistrate ought to be cautious, careful and circumspect. These proceedings are entering into courts like flood water and public money and time are sometimes wasted and that too for nothing. Ram Sumer Puri Mahant v. State of U.P., AIR 1985 SC 472 is an illustrative case which depicts that their Lordships desired that the proceedings under the Sections should be taken only in fitting circumstances. It is essentially necessary that multiplicity of litigation should be avoided as far as possible. So, when the matter can be fully and finally determined by the Civil court and there is time enough for the party to ask for relief in the civil Court it is desirable that the party should go to the Civil Court and obtain appropriate reliefs. I find that the poor rural population of the State are suffering under the pressure of the proceedings. Lured by the prospect of gaining a quick decision they fall prey to such proceeding, they continue with the litigation for years together. The litigations continue and with them bring sufference to both the parties. Ultimately the proceedings are terminated in the High Court after several years. The parties become exhausted and exasperated and the vanquished party commences another fight in civil courts. This aspect of the matter requires deep consideration of the Executive Magistrates, before initiating any proceeding under the provisions of Ss.133, 145 and 147 of "the Code".