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Kalipada Das v. The State
Judgment Summary — Harries, C.J. (with Bose, J. concurring)
Factual and Procedural Background
These are two connected revision petitions considered together by the Court. Criminal Revision No. 428 of 1950 challenged an order directing prosecution of the petitioner under Section 188 of the Indian Penal Code for alleged breach of an order made by the Sub-Divisional Officer (S.D.O.) of Uluberia under Section 144 of the Code of Criminal Procedure (CrPC). Criminal Revision No. 493 of 1950 challenged an order directing prosecution of the petitioner and three others on a charge of theft (referred to in the opinion as under Section 379, Penal Code).
Relevant factual background (as set out in the opinion): - Since about 1910 the petitioner and his brothers had a lease from the Burdwan Raj to remove sand from sand banks in the Rupnarayan River at three points within the area of Police Station Daspur (district of Midnapore). The lease had been renewed from time to time. - A person named Nalini Mohan Biswas held a lease (from the Collector of Howrah) to take sand from the Rupnarayan River. In June 1949 the petitioner applied to a Magistrate in Midnapore for an order under Section 144 CrPC restraining Biswas from taking sand in the areas claimed by the petitioner; a Magistrate apparently made an order restraining Biswas, and that order was affirmed by the Sessions Judge of Midnapore on 5-12-1949. - On 12-1-1950 Biswas applied to the Sub-Divisional Officer of Uluberia for an order under Section 144 CrPC. No notice was served on the petitioner Kalipadadas Karmakar, and an immediate ex parte order under Section 144 was made and (it was said) served. - A complaint alleged that the petitioner breached that S.144 order by taking sand and thus committed an offence under S.188 IPC; prosecution was directed. - A further complaint alleged that the petitioner and three others were taking sand from the char in the Rupnarayan River and had committed theft; charge-sheet under S.379 IPC was received and challenged.
Legal Issues Presented
- Whether the ex parte order made by the Sub-Divisional Officer under Section 144 CrPC was lawfully made in the absence of urgency and without serving notice (i.e., whether the conditions of Sub-section (2) of Section 144 were satisfied).
- Whether service of the Section 144 order complied with Section 134 CrPC (i.e., whether the method of service proved — affixing a copy on a bamboo pole at the scene — amounted to valid service).
- Whether a prosecution under Section 188 IPC can be sustained where the order alleged to have been breached was not legally brought to the notice of the accused.
- Whether criminal proceedings for theft (S.379 IPC) are an appropriate forum to resolve a disputed question of title to river chars and whether such prosecutions amount to an abuse of process where both parties assert competing rights or bona fide claims of right.
Arguments of the Parties
Opposite Party's Argument
- The learned Advocate for the opposite party submitted that, because the petitioner eventually appeared in Court, he must have known of the S.144 order and hence could be prosecuted for breach under S.188 IPC.
Petitioners' Arguments
This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Beni Madbab v. Jadu Nath, 31 C.W.N. 148 : (A.I.R. 1926 Cal. 1208 : 27 Cr. L.J. 715) | Authority on service under Section 134 CrPC: where the peon's return does not show that personal service could not be effected (and does not show an attempt to serve an adult male member of the family), service by affixing a copy in a conspicuous place is improper. | The Court relied on this decision to conclude that the peon's report (that the order was placed on a bamboo pole near the scene) did not constitute valid service because there was no evidence personal service or service on an adult family member had been attempted and failed. |
Court's Reasoning and Analysis
The Court's reasoning proceeded in distinct steps grounded in the facts and statutory requirements as set out in the opinion:
- Nature of the dispute and proper forum: - The Court observed that the underlying controversy was essentially a dispute between the Burdwan Raj and the Collector of Howrah over rights to take sand from certain chars in the Rupnarayan River. - The Court held that criminal courts are not appropriate tribunals to resolve difficult and technical questions of title to river chars, which frequently change position and may require expert evidence and civil adjudication.
- Legality of the ex parte Section 144 order: - Section 144 CrPC may be used to prevent breach of the peace or like emergencies, and Sub-section (2) permits ex parte orders only in genuine emergencies or where notice cannot be served in due time. - The Court found there was no urgency: the dispute had been ongoing for months, there was no suggestion of imminent violence, and the alleged grievance was deprivation of dues rather than threat to life or limb. - Accordingly, the Sub-Divisional Officer had no right to make an ex parte order in these circumstances.
- Service under Section 134 CrPC: - Section 134 requires that, if practicable, the order be served in the manner provided for service of a summons; if service is not possible, publication by proclamation and affixation are alternatives, but only after attempts at personal service and service on an adult family member have been shown to have failed. - The only proof of service was a peon's report that the order had been placed on a bamboo pole and stuck into the sand near the scene. - Relying on the precedent (Beni Madbab v. Jadu Nath), the Court held that such affixation without evidence that personal service (or service on an adult family member) was attempted and impossible is not valid service. - There was no evidence that personal service had been attempted or that service on an adult family member had been attempted and failed.
- Consequences for prosecution under Section 188 IPC: - Section 188 IPC punishes disobedience of an order promulgated by a public servant lawfully empowered to promulgate such order, if such disobedience causes or tends to cause obstruction, annoyance, injury, or risk thereof. - Because the S.144 order was not validly served (and, on the Court's finding, was improperly made ex parte), the petitioner could not have known of it at the time of the alleged acts; therefore a prosecution under S.188 could not lie. - The Court noted the opposite party's contention that the petitioner's subsequent appearance in court meant the petitioner must have known of the order, but found that the alleged breach occurred before any evidence that the order had been brought to the petitioner's notice.
- Appropriateness of theft prosecutions under S.379 IPC: - The Court held that whether the sand was taken from land leased to the petitioner (from Burdwan Raj) or to Biswas (by the Collector of Howrah) is a primary question of title and location of the char — a matter for civil adjudication and potentially requiring expert measurements and evidence. - Even if the sand belonged to Biswas's leased area, a bona fide claim of right would be a complete defence to theft. - Given that both parties asserted rights and bona fide claims might exist, a criminal prosecution for theft would likely fail and amount to an abuse of the criminal process.
Holding and Implications
HOLDING: Both revision petitions were allowed. The Court quashed the criminal proceedings that had been initiated in Uluberia.
The judgment explicitly states that the proceedings under Section 188 of the Penal Code and the proceedings described elsewhere in the opinion as under Section 379 (and referred to in one place as S.879 in the opinion's concluding paragraph) were quashed. The operative effect was to stop the prosecutions then pending against the petitioners before the Uluberia Courts.
Implications: - Direct effect: the prosecutions for breach of the Section 144 order and for alleged theft were quashed; the petitioners were relieved of the pending criminal charges as described in the opinion. - Broader effect: the Court emphasized the inappropriateness of using criminal process to decide contested questions of title and the necessity of strict compliance with statutory procedural requirements for ex parte orders and service under the CrPC. - The opinion does not purport to establish a new legal principle beyond applying existing statutory requirements and precedent (notably on proper service under Section 134 CrPC); it resolves the petitions on the facts and statutory noncompliance described.
Disposition: Petition(s) allowed; the criminal proceedings as described in the opinion were quashed.
Harries, C.J:— These are two connected revisions which can be disposed of by this judgment.
2. Criminal Revision No. 428 of 1950 is a petition for revision of an order directing the prosecution of the petitioner under S. 188, Penal Code, for breach of an order made by the Sab-Divisional Officer of Uluberia under Section 144 of the Cr PC. Criminal Revision 493 of 1950 is a petition for revision of an order directing the prosecution of the petitioner and three others on a charge of theft.
3. It appears that in the year 1910, the petitioner and his brothers leased from the Burdwan Raj the right to remove sand from sand banks in the Rupnarayan River. This lease gave them a right to remove sand at three points within the area of Police Station Daspur in the district of Midnapore. The lease was originally for three years, but has been renewed from time to time.
4. It seems that one Nalini Mohan Biswas leased the right to take sand from the Rupnarayan River (from?) the Collector of Howrah and in June of 1949, the petitioner applied to a Magistrate in the Midnapore district for an order under Section 144 of the Cr PC, restraining Biswas from taking sand from these areas in the Rupnarayan River. The learned Magistrate apparently made an order restraining Biswas. Thereupon, on August 13 Biswas applied to the Magistrate at Uluberia for an order against the petitioner under Section 144 of the Cr PC. These proceedings were not pressed as appellate proceedings were pending from the order of the Magistrate restraining Biswas under Section 144 of the Cr PC. On 5-12-1949, the Sessions Judge of Midnapore affirmed the order made by the Magistrate against Biswas under S. 144.
5. On 12-1-1950, an application was made by Biswas to the Sub-Divisional Officer of Uluberia for an order under Section 144 of the Cr PC. No notice was served on the petitioner Kalipadadas Karmakar and an immediate order under S. 144 was made and it is said that this order was served.
6. A complaint was made that the petitioner in criminal Revision No. 425 of 1950 in breach of this order took sand from the Rupnarayan River and therefore committed an offence under S. 188 of the Indian Penal Code. His prosecution was accordingly directed.
7. A complaint was also made that the petitioner and three others were taking sand from the char in the Rupnarayan River and therefore had committed theft and the charge sheet was received and it is urged that these proceedings should be quashed. It appears to me beyond all question that the dispute in this case is really a dispute between the Burdwan Raj and the Collector of Howrah and that attempts are being made to establish the title of the Collector of Howrah by means of criminal proceedings. The criminal Courts were never intended to decide nice questions as to the ownership of chars in a river which frequently change their position. The questions involved in this case are probably extremely difficult questions to decide and are questions which could only be decided satisfactorily in a civil Court. Nevertheless, the Sub-Divisional Officer of Uluberia having, as his order shows, received a memorandum from the Collector of Howrah, who of course is Biswas's lessee (lessor?) found no difficulty in coming to the conclusion that this char was within the district of Howrah and therefore could be leased to Biswas. It seems to me that a criminal Court in the district of Howrah is hardly an appropriate tribunal to decide whether the Collector and District Magistrate of Howrah who is the immediate superior of all Magistrates in the district is or is not entitled to lease property to others. In any event, I should have imagined before arriving at any conclusion that the learned Sub-Divisional Officer would have proceeded with great care. What he did, however, was to make an ex parte order when there was no urgency in the matter at all. He simply made it because a police officer thought that Kalipadadas Karmakar should be restrained from collecting sums in respect of this sand.
8. An order under Section 144 of the Cr PC, may be made where it is necessary to prevent a breach of the peace or something of that kind. Sub-Section (2) of Section 144 of the Cr PC however provides that only in case of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed an order can be made ex parte. As the narration of the facts has shown this dispute had been dragging on for months and months and there was no desperate urgency in the matter at all. There was no suggestion that heads were likely to be broken. The most that was being suggested was that the lessee of the Collector of Howrah was being deprived of his just dues. It seems to me that this was not a case which came within sub-s. (2) of S. 144 and therefore the Sub-Divisional Magistrate had no right whatsoever to make an ex parte order. The ex parte order was made by the learned Magistrate after having seen a report of the Officer in Charge of the Amta Police Station and the Collector's memo, randum. How the Collector's memorandum could be placed before a judicial officer to help him to decide the case when the Collector himself was the person really involved, I find it difficult to understand.
9. It seems to me quite clear that this order under S. 144 was illegally made and if, it had been challenged I should have had no hesitation whatsoever in setting it aside.
10. Further, it is clear that this order under S. 144 was never served on the petitioner Kalipadadas Karmakar as required by law. The service must be in accordance with the provisions of Section 134 of the Cr PC, Section 134 provides:
“(1) The order shall, if practicable, be served on the person against whom it is made, in manner herein provided for service of a summons.
(2) If such order cannot be Berved, it shall be notified by proclamation, published in such manner as the State Government may by rule direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.”
11. The proof of service was the peon's report which stated that he had placed the order on a bamboo pole and stuck the pole into the sand near the scene of the dispute. That clearly is no service at all of the order in question. Before that form of service can be resorted to it must be shown that personal service could not be effected. Even if personal service could not be effected, service should, if possible, be made on an adult member of the family of the person to be served. It is only when those forms of service are found impossible that service can be effected by affixing the notice at some place at which it is likely to be seen by the persons sought to be served. There was in this case no evidence at all that any attempt had been made to serve the petitioner personally and that such attempts had failed. There was no evidence that any attempt had been made to serve any adult member of the petitioner's family and that such had failed. That being so, service by placing this notice on a bamboo pole near the scene of the dispute was no service at all. This point has been clearly decided by a Bench of this Court consisting of Sanderson C.J and Rankin J. in the case of Beni Madbab v. Jadu Nath, 31 C.W.N 148 : (A.I.R (13) 1926 Cal. 1208 : 27 Cr. L.J 715). The Bench had to deal with the service of a notice under Section 134 of the Cr PC and it was held that where the serving peon's return showed that personal service could not be effected and therefore service was effected by affixing a copy to some conspicuous part of the house but it did not show that service by leaving a copy with an adult male member of the family was impossible, there was no proper service of the order.
12. The case before us is a very much worse case than the Bench decision to which I have referred. In that case there was some evidence that personal service could not be effected, but even so that was not sufficient to warrant service by affixing the order at some conspicuous place. In the case before us there is no evidence that personal service could not be effected and no evidence that service on an adult male member could not be effected. That being so, the service proved in the peon's report was no service at all and, therefore, this order under S. 144, which to my mind was invalidly made ex parte, was never served and therefore no proceedings could be commenced for breach of it. Though I am of opinion that no ex parte order should have been made in this case, I am not deciding the petition on that ground. I am deciding it on the ground that the order which was made was never served and therefore never brought to the notice of the petitioner.
13. Section 188, Penal Code, provides:
“Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain Act, or to take certain order with certain property in his possession or under his management, disobeys such direction,
shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both….”
14. Learned Advocate for the opposite party contended that eventually the petitioner appeared in Court and then he must have known of this order. Unfortunately, he is charged with a breach of the order before that time, and there is nothing to show, and indeed it could not be shown, that the order had been brought to his notice and therefore no proceedings under S. 188 could possibly lie against him. The Code of Criminal Procedure requires these orders to be served in a certain way and if they are not served in that way, then it appears to me that a prosecution under S. 188 becomes well high impossible if not altogether impossible. However, in this particular case, there is nothing whatsoever to suggest that the petitioner knew of this order at the time when he is alleged to have acted in contravention of it and for which he was being prosecuted.
15. It seems to me that these proceedings under S. 188, Penal Code, were wholly misconceived and the proceedings are quashed.
16. Criminal Revision No. 493 of 1950 is, as I have said, a petition for quashing certain proceedings by which the petitioners are being prosecuted under S. 379, Penal Code. It appears to me that the Collector of Howrah is seeking the aid of the criminal Courts to establish his title and a criminal Court is not a Court which is fit to decide or capable of deciding difficult questions of title. I can well imagine if this dispute was fought out in the civil Court evidence of experts involving very accurate measurements would be tendered to show that the char in question either fell within the Burdwan Raj territory or fell within the district of Howrab. Of course, the Sub-Divisional Magistrate says the matter is quite simple. But these cases usually are not simple and though a Sub-Divisional Officer may think they are Bimple other Judges with somewhat more experience of this class of cases than the Sub-Divisional Officer frequently find them most difficult. Whether the petitioners are guilty of theft or not would depend in the first place upon whether the sand was taken from the area leased to the petitioner Kalipadadas Karmakar by the Burdwan Raj or whether it was taken from the area leased by the Collector of Howrah to Biswas. That may be an extremely difficult point to decide and the proper tribunal to decide that question is a civil Court and not the Court of a Magistrate in the Howrah District particularly when the person mainly concerned is the Collector of Howrah. There is of course a complete defence to a charge under S. 379, even if it transpired that the sand was taken from the area leased to Biswas. If the Court was satisfied that it was taken under a bona fide claim of right, then no prosecution for theft could possibly succeed. It seems to me in the present case that each party is asserting its right to take the sand from this particular area. One or other of them must be wrong. But it may well be that both of them are claiming bona fide a right to take sand. That being so, a case under S. 379, Penal Code, if instituted, would be bound to fail. It seems to me that instituting a case of theft in a matter of this kind practically amounts to an abuse of the process of the criminal Courts. The matter should be foaght out either between the lessees or between the Burdwan Raj and the Collector of Howrah. The right to take sand from this particular area cannot and should not be decided by Courts of Magistrates wholly unfitted to deal with questions of this kind. In my view the proceedings under S. 379, Penal Code, should be quashed and I would quash them.
17. In the resnlt, therefore, both these petitions are allowed. The proceedings under S. 188 and S. 879, Penal Code, now pending against the petitioners before the Courts at Uluberia are quashed.
18. Bose, J.:— I agree.
R.G.D
19. Petition allowed.
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