Harries, C.J:— These are two petitions for revision of orders made by a learned Magistrate under sec. 144 of the Code of Criminal Procedure.
2. The Opposite Parties presented petitions to the District Magistrate complaining that the present Petitioners in these cases were interfering with their possession. It seems that these petitions were not even verified, but the District Magistrate immediately issued an order in these terms:
“The usurping party may please be restrained immediately under secs. 144, 107, Cr. P. Code and asked to come through Civil Court and the party in possession may be allowed to continue in possession”.
3. Strange to say, this order is in terms addressed to the Superintendent of Police. The latter on receiving this order also made an order in these terms:
“S.D.O will please issue order as directed and send to O/C, Harishchandrapur P.S to take immediate steps”.
4. Presumably the learned District Magistrate was acting under the second paragraph of sub-sec. (I) of sec. 144 which provides:
“such Magistrate may, by a written order stating the material facts of the case and served in manner provided by see. 134 direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety or disturbance of the public tranquility, or a riot, or an affray”.
5. It is clear that the order must be served in the manner provided by sec. 134 of the Code of Criminal Procedure and there is nothing in sec. 144 which authorises the learned District Magistrate to address an order to the Superintendent of Police. Sub-sec. (3) of sec. 144 provides that an order under that section may be directed to a particular individual, or to the public generally. There is nothing to suggest that it is an order directed to the head of the police in the District. What happened afterwards is stranger still. The Superintendent of Police took it upon himself to issue an order to the Sub-Divisional Magistrate, although I do not think it would be conceded for a moment that a Magistrate is under the orders of a Superintendent of Police. But apparently such is the case in the Malda District.
6. The matter eventually came before the Sub-Divisional Officer and he on November 8, 1948, made this order:
“Issue order under sec. 144, Cr. P. Code restraining the 2nd party from entering upon the disputed land. Bend the order by Special Messenger to O/C, Harishchandrapur for service and return by 23-11-48. Notice also 1st party”.
7. It will be seen that in both the orders of the learned District Magistrate and the Sub-Divisional Magistrate it is assumed that the Opposite Parties before us were in possession and it is assumed that their possession was being disturbed by the present Petitioners, though as I have said, the petitions made to the District Magistrate were not even verified and he took no evidence of any kind. How these orders could be passed in those circumstances I am wholly unable to say and it appears to me there was no material at air before the Courts upon which they could hold or assume that the present Petitioners were ousting the present Opposite Parties who were lawfully in possession.
8. The present Petitioners filed written statements in which they pleaded that the lands in question had been held as chakran lands by a person long since dead. They alleged that the chakran lands had been resumed by the Petitioners and further that the present Opposite Parties had no connection whatsoever with the deceased chakran tenant.
9. It seems that the Sub-Divisional Officer took no evidence and in a very short order disposed of the matter. The order begins by stating that the first party is the recorded chakran tenant of the Opposite Parties.
10. It is contended that that is a misstatement and that the record-of-rights shows that the chakran tenant was one Chatru Sardar who is dead. The record-of-rights is before us and it does show Chatru Sardar as the chakran tenant. If the present Opposite Parties are not successors of this Chatru Sardar, then there is no basis whatsoever for the statement of the Sub-Divisional Officer that the present Opposite Parties are the recorded chakran tenants of the present Petitioners.
11. Mr. Talukdar on behalf of the present Petitioners has urged that the whole proceedings before the Sub-Divisional Magistrate were conducted in a most extraordinary way. The learned Magistrate heard no evidence and there is nothing to show that he actually received the copy of the record-of-rights in evidence though that is in the record. If he took it in evidence then his statement that it is admitted that the present Opposite Parties were chakran tenants of the Petitioners is unintelligible.
12. In these cases Magistrates must ascertain upon evidence who is in possession and if it is necessary they then can issue orders restraining other persons from interfering with such possession. These orders, however, seem to be issued without any consideration whatsoever. Only the other day cases came before a Bench of which I was a member where a Magistrate had issued orders restraining the person in occupation from remaining in occupation.
13. In other words, the learned Magistrate had evicted the person in possession and had placed the usurper in possession by means of an injunction under this section. Quite clearly sec. 144 of the Code of Criminal Procedure was never intended for such purposes. The section is intended to give Magistrates powers to take immediate action to prevent breaches of the peace and such like; but even so learned Magistrates should be careful to ascertain who is in possession and who is the disturber of that possession. Issue of an injunction of this sort though the order is only effective for a comparatively short space of time is a serious matter, and these orders should not be made without an investigation as to the true facts of the case. As I have said, in this case all the Courts assumed that the unverified petitions of the present Opposite Parties were true and without any real enquiry issued an injunction. If the learned Magistrate had studied the record-of-rights that in itself would have given him cause to think. The present Opposite Parties' case can only be true if they are successors of Chatru Sardar mentioned in the record-of-rights and apparently on that no evidence whatsoever was given.
14. The result is that the orders passed in these cases cannot possibly stand and must be set aside. The cases are sent back to the Court below to be decided after hearing the evidence adduced by the parties and after consideration of the record-of-rights.
15. The petitions are, therefore, allowed and the Rules are made absolute in these terms. The cases should be re-heard by another Magistrate if there is a Magistrate in the District empowered to hear these matters under sec. 144 of the Code of Criminal Procedure.
Das Gupta, J.:— I agree.