RAM GOPAL GOENKA Vs. NARAYAN DAS CHANDRA

JUDGEMENT

(1.) Criminal Revision No. 952 of 1927. This Rule has been granted in regard to an order-made by the Deputy Magistrate of Howrah trader Section 144, Criminal P.C. The material portion of the order was in these terms: Whereas it appears from the petition filed on 21 July 1927 by Narain Das Chandra of 12 Shib Kristo Daw Lane, Calcutta, and the report dated the 26 July 1927 submitted thereupon by the Sub-Inspector of Golabari police station that Bam Gopal Goenka, of 20 Central Avenue, Calcutta, is holding a new market at Nos. 97 and 99 Haragunj Road, Sulkea, adjacent to the old Haragunj Bazar belonging to the Daw Babus of Jorasanko, Calcutta, for which a breach of the peace is apprehended, I do hereby prohibit the said Ram Gopal Goenka from holding new market at Nos. 97 and 99. Haragunj Road, as the holding of such market will lead to an imminent breach of the peace.

(2.) Now the order was only in force for two months and it expired on the 27 September 1927. Prima facie, therefore, the necessity for vacating it is not clear except on the ground that proceedings have been taken against the petitioner tinder Section 188, I.P.C., for violating it.

(3.) There is no dispute that the market which has been prohibited is situated on the petitioner's own land. The findings in the present case are that he applied to the Howrah Municipality to construct certain buildings upon this land and, according to the petition, sanction was first accorded by the Municipality but was afterwards revoked on the 30 June 1927. The facts found by both the Courts below are that the petitioner continued the work of construction in spite of the fact that sanction had been withdrawn. It is said also that he had no license as required under the Municipal Act, though this matter does not appear to be entirely clear. The further finding is that certain Nepali durwans in the employ of the petitioner forcibly dragged vendors to the new market and otherwise molested the public by conducting passers-by into the market presumably with the view of making them buy their commodities there rather than in the adjacent bazar belonging to the Daw Babus. Both the lower Courts have found that it was likely to result in an imminent breach of the peace. The question, therefore, we have to consider is whether the Magistrate was in these circumstances, justified in passing an order which admittedly is intended to operate only in cases of extreme urgency. Mr. Langford James who has appeared for the petitioner has contended that Section 144, Criminal P.C., is never intended to be used in any case of dispute between the owners of two rival bazars and that if some servants of one of these owners are shown to have acted illegally or oppressively, Section 107, Criminal P.C. is the proper section to be proceeded under to bind them down and to restrain them from committing further offences. He has referred to two cases, namely the cases of Satish Chunder Roy V/s. Emperor [1907] 1 C.W.N. 79, and Bidhu Ranjan Mojumdar v. Romesh Chunder Rai [1907] 11 C.W.N. 223. The learned Judges who decided the first of these two cases were of opinion that the Magistrate could not, by passing successive orders under Section 144, Criminal P.C., extend the operation of the order beyond the time limited by Sub- section (5) of Section 144, Criminal P.C. and that the most appropriate section of the Code to deal with cases of rival hats which might cause a breach of the peace was Section 107 of the Code. No doubt, that view must be treated with respect. But we are of opinion that the powers of a Magistrate to deal with the situation where a breach of the peace is, in his opinion, imminent have been so clearly defined in the Full Bench case of Bykuntram Shaha V/s. Meajan 10 B.L.R. 434 (F.B.), to which our attention has been drawn by Mr. Chatterjee who appears for the opposite party that we cannot do better than set down some of the findings therein contained. What the learned Chief Justice Sir Richard Couch, in interpreting the words of the section, said is this: The word "certain" placed before the word act and afterwards repeated twice in the expression "to take certain order with certain property in his possession" leaves no reasonable doubt in our minds that the legislature intended to give full and ample powers to the Magistrate, the chief officer entrusted with the duty of preserving the peace of the district, to restrain any person from doing any act or to command him to hold any property in hia possession subject to any condition, whenever such Magistrate shall consider that such a course of procedure is likely to prevent or even tends to prevent a riot or an affray; and again the learned Chief Justice said: A particular act or a particular mode of enjoyment of property might be perfectly innocent or lawful in itself. But the act may be done or the property enjoyed in that particular mode under circumstances calculated to lead to a serious breach of the peace attended even with loss of human life; and it would be by no means proper or desirable to hold that even in such cases the chief peace officer of the district has no power to issue an order such as that contemplated by Section 62 of Act 25 of 1861.