MADHO SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against an order of the Sub-divisional Magistrate of Arrah deciding to continue a proceeding drawn up by him under Section 107, Criminal P.C., against the petitioners on 27 September 1941. That proceeding was based on a report of the Sub-Inspector of Police, Shahpur, that the petitioners "are aggressors since they do not go to the civil Court in spite of 144 notices by S.D.O. Sadr, and...are determined to commit serious occurrences in order to assert possession over the land disputed by them." The Sub-Divisional Magistrate was satisfied from this report that "there is imminent danger of breach of peace between the parties on account of dispute over 232 bighas of land in village Bharasra Bansgit even after the accused persons...were restrained under Sec 144, Criminal P.C., by my order dated 28 June 1941 and...have been committing overt acts to dispossess Bindhyaohal Prasad, landlord." By his proceeding of 27 September the Magistrate accordingly ordered the petitioners to appear before him on 7 October and show cause why they should not be bound down under Section 107 in bonds of Rs. 250 each, with two sureties each, to keep the peace for a period of one year. On 7 October the petitioners appeared and showed cause on a number of grounds. The Magistrate chose to overrule this (and fix dates for hearing the evidence) by an order of 11 October, which is now assailed in revision before me. The District Magistrate was moved against the order on 15 October, but found "nothing irregular in the order of the lower Court in having used its discretion to proceed under Section 107."

(2.) The order passed by the learned Magistrate under Section 144 on 28 June was brought up in revision to this Court after a summary refusal by the District Magistrate to interfere. The matter came before me, and it was anticipated by counsel for the petitioners and anticipated rightly, having regard to the settled practice of this Court that this Court would decline to interfere as the order would become time-expired in a few days. Learned Counsel, therefore, prayed that it should be made clear that the finding of possession on which the order under Section 144 was based should carry no weight in subsequent proceedings under the obviously appropriate section, viz., Section 145. With the order under Section 144 before me, I considered that in the circumstances of the case the petitioners were entitled to an observation to that effect, and I made this clear in dismissing the application in revision. The petitioners referred to this in para. 3 of the oause shown by them on 7 October. But the Magistrate, surprising as it seems, decided "An order under Section 144 has been passed and a finding regarding their possession over the disputed land has already been given. Bowing down to the suggestion made by the Honourable High Court, I am of opinion that in the present circumstances this proceeding is necessary to stop further apprehension after the order under Section 144, Criminal P.C. The question whether the other party is also committing overt act or not must necessarily come up within the purview of this Court in the course of this inquiry, and then if it is found necessary a proceeding under Section 107, Criminal P.C., will be drawn up against Bindhyachal Prasad and others."

(3.) The Magistrate thus appears, among other things, to have made up his mind that the question of possession is concluded against the petitioners by his order in the proceeding under Sec. 144 and that action may properly be taken under Section 107 against the petitioners alone, at any rate in, the first instance. He may possibly proceed against the other party under this section if the present proceeding should disclose the commission of overt acts by them presumably meaning acts of a character not warranted by the possession that he has found in their favour. If this be the view of the Magistrate, it is wrong throughout, and his error is the less excusable because he had been unmistakably told that his order under Section 144 could carry "no weight in subsequent proceedings under the obviously appropriate section, viz., Section 145." He has also failed in his duty by insisting on applying Section 107 in the face of what was clearly pointed out to him as the proper section to apply and thus committing a deliberate error, saying (singularly enough) that he is "bowing to the suggestion made by the" Honourable High Court." It is regrettable that the District Magistrate saw nothing irregular in proceedings taken by a subordinate Magistrate in such deliberate disregard of what this Court had said for his guidance. The dispute between the parties relates to bakasht land, some of which is said by the petitioners to have been settled with them by Lady Jwala Prasad in June 1940. Lady Jwala Prasad died in June 1941, but even before her death, and indeed before her settlement with the petitioners, there appears to have been at least one dispute between her and Mr. Bindhyachal Prasad who apparently claimed possession of the land on her failure to pay canal dues and his payment of them. The petitioners claimed to have come into possession under the settlement from Lady Jwala Prasad, and they denied the actual possession of Babu Bindhyachal Prasad and others of the party opposed to them in the proceeding under Section 144.