KALIPADA ROY Vs. SATISH CHANDRA HUI

JUDGEMENT

(1.) THE difficulty in this case is due to the fact that the Sub-divisional Magistrate passed an entirely illegal order. THE opposite party filed an application under Section 144, Criminal P.C., alleging that there was a dispute likely to lead to a breach of the peace about the possession of a certain plot of land. THE opposite party apparently persuaded the Magistrate that there was likely to be a breach of the peace; but, instead of adopting the sensible procedure of drawing up proceedings under Section 145, Criminal P.C., he took the ill-advised course of passing an ex parte order on the petitioner. He then made an absolutely illegal order directing the police to reap the paddy. As was almost inevitable the petitioner appealed to the District Magistrate who promptly set aside the ill-advised order under Section 144, Criminal P.C., and directed the Sub-divisional Magistrate to take proceedings under Section 145 if there was likely to be a breach of the peace. Either there never was any likelihood of a breach of the peace or the matter was settled temporarily by the action of the police. At any rate, no further proceedings were taken. THE question, however, remained of the disposal of the paddy. THE Magistrate ordered the police to thrash it and sell it and deposit the money in Court. Against that order the petitioner has obtained the present rule.

(2.) THERE is no justification whatever, in the absence of proceedings under Section 145 and an attachment order under Section 146, for detaining this money for an indefinite period in Court. Now it is a matter of common experience that the party who applies for an order under Section 144 is usually not in possession. The only object of applying for such an order is that he may seize possession behind the back of the party who is already there. The opposite party managed to obtain such an order but it has been set aside by the District Magistrate who pointed out that there were no grounds whatever for supposing that the opposite party is in possession of the disputed land. He, therefore, certainly cannot be allowed to reap any benefit from that ex parte order. Then, in the second place, if the opposite party was really in possession of the disputed land, I cannot conceive why he should be content with an order directing his money to remain in the custody of the Court apparently forever. The fact that he remained content with that order is in itself sufficient to suggest that the petitioner was really in possession. If the opposite party has any title to the disputed land, he should establish it in proper proceedings. The rule is accordingly made absolute and I direct that the paddy be returned to the petitioner.