HARENDRA NATH PATHAK Vs. STATE

JUDGEMENT

(1.) This application relates to the expunging of certain remarks made by the Sub-Divisional Magistrate of Aurangabad in an order disposing of a proceeding under Section 144, Criminal P. C. The petitioner was not a party to the said proceeding and yet it is said that the learned Magistrate made those unwarranted and un-justified remarks without making him a party to the proceeding or giving him an opportunity to explain his conduct. The petitioner is an Honorary Magistrate of the sub-division and he is also the Manager of the Kunda Estate, known as the Bengali Estate, in the district of Gaya. The circumstances which led to the proceeding under Section 144, relate to a dispute with regard to an area of about 66 bighas of land situate in village Sansha, police station Daudnagar, in the sub-division of Aurangabad. The petitioner states that 19 bighas and odd of these lands belonged to one Rameshwar Gosain, of which the Kunda Estate and other co-sharers were the landlords. The Estate obtained a decree for rent against this Rameshwar Gosain and, in execution of the said decree, the lands in question were sold and purchased by the decree-holder landlord of which the landlord obtained delivery of possession sometime in 1989. It is then stated that in 1940-41, the landlord, of which the petitioner is the Manager, settled the said lands measuring 19 bighas and odd along with the other lands which have been recorded as gkairmazruamalik with Ramchander Ahir, Bharat Ahir and others. It appears that subsequently in August 1949 there was a proceeding under Section 144 between these settlees under the landlord and the outgoing tenants Rameshwar Gosain and others, in which proceeding the settlees were party l while Rameshwar Gosain and others were party 2. In that proceeding, an application was filed on behalf of the Kunda Estate by the petitioner supporting the settlement in favour of party 1 to the proceeding. The learned Magistrate disposed of the proceeding on making a local inspection, and the entire finding appears to have been based upon the local inspection made by the Sub-Divisional Magistrate himself. The petitioner alleges that a few months before the initiation of the 144-proceeding, party 2, Rameshwar Gosain and others had filed a complaint against the settlees and also against the men of the landlord in which they complained that the members of party 1, the settlees, were trying to dispossess Rameshwar Gosain and others by force. In that case, the complaint was dismissed by the Sub-Divisional Magistrate himself in which he found that the outgoing tenants, Rameswar Gosain-and others had no right and interest in the lands in question and that they should, if at all, have recourse to civil Courts. The petitioner alleges that, in view of that decision, the 144-procseding should not have been decided against the new settlees, who were party 1 in that case, and the learned Magistrate did so merely because he was inimical to the petitioner and, in the coarse of his order made those unwarranted observations. It appears that party 1, to the 144-proeeeding had moved the District Magistrate against the order under Section 144, but the learned Additional District Magistrate, while disposing of the application, refused to interfere because the order under Section 144 had spent its force, though the Additional District Magistrate realised that the order of the Sub-Divisional Magistrate had been passed without properly or duly considering all the facts and circumstances relating to the dispute. The petitioner appears to have moved the District Magistrate also for expunging the remarks in question and for making a reference for the purpose to this Court. But the learned Additional District Magistrate of Gaya, who heard the said application, rejected the same on 11-4-1960, ob. serving that it would be immaterial to take any action on those observations, because he had already found when rejecting the application against his order under Section 144, that the findings of the learned Sub-Divisional Magistrate were not correct. The petitioner has, therefore now moved this Court for expunging the remarks made by the Sub-Divisional Magistrate. The remarks complained of are to be found at various places in the course of the order and they have been stated in para. 7 of the application. Paragraph 7 (A) refers to the remark which runs as follows:

(2.) I should like to say as little as possible against the order of the learned Magistrate disposing of the proceeding under Section 144, because I have no desire to prejudice the case of party 2, but I must observe that the procedure adopted by the learned Magistrate in disposing of the proceeding under Section 144 was really extraordinary. The dispute related to a large area of land and it was s dispute as to the possession of immovable property. He himself observed that some of the tenants were on the side of the landlord while some of the tenants whose interest is said to have been sold off were opposing the landlord and the other set of tenants. In such a case, if there was an apprehension of breach of the peace, the proper proceeding was a proceeding under Section 145 and the matter should have been decided in such a proceeding, but the Magistrate, instead of adopting the proper procedure known to the law in the circumstances of the case, proceeded to dispose of the matter under Section 144 and that also not upon any material but largely and mainly upon his local inspection. I do not find from the record that there was any memorandum prepared by the learned Magistrate of this local inspection nor has such a memorandum been referred to in the order itself. It appears that, in connection with a previous dispute between the parties in respect of some of these lands, the matter was decided by the same learned Magistrate on 7-1-1949. There, it appears, party 2 to the proceeding had alleged that they were likely to be dispossessed of the lands in question by the new settlees, that is, the members of party 1 in collusion with the landlord and, therefore, action should be taken against them. On this complaint, there was an enquiry by the Magistrate and the said learned Magistrate himself dismissed the complaint under Section 203, Criminal P. C. In dismissing the complaint, the learned Magistrate himself observed as follows:

(3.) After this emphatic observation made by the learned Magistrate himself, it was singularly inappropriate on his part to proceed under: Section 144, Criminal P. C., and what is worse to dispose of this proceeding not by taking any evidence in the case or after making the landlord a party but on his local inspection. I am, however, not concerned with the 144-proceeding itself, except, incidentally, to show that the remarks made in his order as to the petitioner and his conduct were quite unjustified, because the learned Magistrate had not made the petitioner a party to the proceeding nor had he called for the production of evidence in support of his allegation in the petition filed by him that the Estate had settled the land with party l. If he had called for these documents-and made the petitioner a party, he would have found, presumably, as he himself did find on a previous occasion, that the allegations were correct. The Additional District Magistrate, while, disposing of the proceeding, observed that "the dispute related to possession over a vast tract of lands, measuring about 66 bighas which should not have been dealt with and disposed of by' a summary proceeding under 8. 144, Criminal P. C. . . the proper course for the Magistrate in such disputes was to decide-the question of possession once for all in a regular proceeding under Section 145, Criminal P. C. It appears that the landlords, after having obtained dakhaldehani, settled the lands with the applicants who are armed-with hukumnama and rent receipts in respect of the lands and whose documentary evidence of possession cannot easily be brushed aside. There was furthermore a Criminal ease in respect of some of these very lands and between the same parties. The same Magistrate had by his order dated 7-1-1949, dismissed the complaint under Section 203, Criminal P. C., and In that substantive case of O. P. Rameshwar Gossain who was directed to Civil Court for the remedy of his claim, the learned Sub-Divisional Magistrate had accepted the delivery of possession in favour of the landlords from whom the applicants base their claim.