LACHMI NARAYAN SINGH Vs. NANDKISHORE SINGH

JUDGEMENT

(1.) This is an application which arises in the following circumstances: The Sub- Divisional Magistrate of Bihar, in view of an imminent danger of a breach of the peace between the petitioner and the opposite party, issued notice under Section 144, Criminal P.C., prohibiting either party from going near the subject-matter of the dispute. On cause being shown by the parties, the Magistrate confirmed the order against the second party and discharged it as against the first party. The dispute was with respect to the erection of a bundh which prevented the water of a river from flowing into a pyne. The bundh is said to be on the land of the second party. Having prohibited the second party from going to the bundh, the order went on to say that the first party were permitted to remove the obstruction to the flow of water, that is to say, the bundh. Later the Magistrate directed the Local Police to assist in the removal of the bundh.

(2.) The second party moved the District Magistrate against the order under Section 144 and asked for the stay of the order for the removal of the bundh. The District Magistrate having refused to order a stay, this Court was moved, and an ad interim stay was granted. The question now for consideration is whether the cutting of the bundh shall be stayed or not. It has been contended that the order of the Magistrate with regard to the cutting of the bundh is itself illegal and therefore its execution should be stayed. The argument was based on the contention that Section 144, Criminal P.C., empowers a Magistrate only to pass a prohibitory order and not a mandatory order. A number of cases have been referred to in which this contention has been upheld. But when the facts of those cases are examined, it is found that what the learned Judges, who dealt with those cases, were considering was the effect of the words in para. 2 of Section 144 "to abstain from a certain act" and they were considering whether the power conferred upon the Magistrate by the Section authorizing him to direct a person to abstain from a certain act, includes a power to direct the doing of an act.

(3.) It is to be observed however that the Section not only empowers a Magistrate to direct a person to abstain from a certain act but also empowers a Magistrate to direct a person "to take certain order with property in his possession or under his management," if the Magistrate considers that such direction is likely to prevent, or tends to prevent, amongst other things, a disturbance of the public tranquillity. This part of the Section, it seems to me, clearly empowers a Magistrate to pass a mandatory order on persons in possession of property if it is necessary in the opinion of the Magistrate that such action should be taken for the purposes enumerated in the Section. That view is supported by the decision of a Division Bench of the Calcutta High Court in Balaram Dey V/s. Pran Ram . That was a case in which the conviction of a person who had disobeyed the, order of the Magistrate passed under Section 144 directing him to cut a certain bundh Was upheld, on the view that the direction to cut the bundh was a legal order under Section 144.