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Brojendra Nath Biswas v. The State Of West Bengal And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
(Summary limited strictly to facts and procedure stated in the opinion.)
The petitioner is the sole proprietor of Moukhali Co-operative and conducts pisciculture at Moukhali Village, Police Station Canning. He instituted Title Suit No. 25 of 1977 in the Court of the Subordinate Judge, 6th Court, Alipore, seeking an interim injunction against respondents Nos. 5 to 21. An injunction was initially granted by the learned Subordinate Judge; however, the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure was rejected on March 27, 1978. An appeal was refused by the learned Additional District Judge. Thereafter the petitioner obtained relief from this Court by Civil Rule No. 968(M) of 1978, which restrained respondents Nos. 5 to 21 by an interim injunction from interfering with possession or damaging the fishery; that Civil Rule was made absolute on 1-9-78. Subsequently, the learned Additional District Judge, 13th Court, Alipore, also allowed a pending appeal and restrained respondents Nos. 5 to 21 from interfering with the plaintiff's possession until disposal of the suit. These facts were admitted and not in dispute.
The petitioner alleged that the respondents, having failed in their attempts to obtain possession, enlisted strangers and anti-social elements to dispossess him. He initiated a proceeding under Section 144(2) CrPC (M.P. Case 921 of 1980 — listed in the opinion as Brojendra Nath Biswas v. Saukat Purkait). The Executive Magistrate ordered an enquiry and directed the Canning Police Station to report and afforded that, if necessary, police picket should be posted at the petitioner's cost. The petitioner alleged the police authorities (respondents Nos. 2 and 3 — Superintendent of Police Alipore and Officer-in-Charge, Canning Police Station) failed to provide assistance or discharge statutory obligations to protect the fishery.
As a consequence of that claimed inaction, the petitioner obtained a Rule and corresponding interim order dated 13-10-1980 directing respondents Nos. 2 and 3 to protect Moukhali Fishery and post a police picket. Respondents Nos. 4, 7, 12, 15 and 17 filed an application on 22-1-81 to vacate the interim order. There were subsequent adjournments and mentionings; at the hearing, counsel for the applicants (Mr. Roy) produced an order dated 18-12-1980 in M.P. Case No. 921 of 1980 indicating the petitioner had not proceeded with that Section 144(2) proceeding and that the proceeding was directed to be filed (i.e., treated as not pursued).
Legal Issues Presented
- Whether the High Court, under Article 226 of the Constitution, may be moved to enforce or obtain police protection (such as posting a police picket) to carry out incidents of an injunction without first resorting to proceedings under Section 144(2) of the Code of Criminal Procedure.
- Whether a proceeding under Article 226 is maintainable for carrying out the incidents of an injunction granted by a competent civil court, or whether such enforcement must ordinarily proceed by avenues provided in the Code (including Section 144(2) or the remedies within Order 39, R.1–2, CPC).
- Whether the interim injunction previously granted by this Court (the Rule obtained on 13-10-1980 directing police protection) should be dissolved in view of the procedural history and applicable legal principles.
Arguments of the Parties
Arguments on behalf of the applicants to vacate the interim order (Mr. Roy)
- Mr. Roy produced an order dated 18-12-1980 in M.P. Case No. 921 of 1980 showing that the petitioner had not proceeded with the S.144(2) proceeding and that the proceeding was directed to be filed (i.e., it had not been pursued to execution).
- Implicitly, by reliance on authority cited by the Court, the position that ordinarily the High Court should not be moved under Article 226 in a manner that would frustrate the provisions of Section 144(2) CrPC.
Arguments on behalf of the petitioner/supporting the Rule (Mr. Banerjee)
- Mr. Banerjee contended that an application under Article 226 would be maintainable in the instant case because the petitioner had sought help from authorities for protection and the Code (Order 39, R.1–2) contains no appropriate provision for giving police protection such as posting a picket.
- He relied on the Supreme Court decision in State of Madhya Pradesh v. Babulal (AIR 1977 SC 1718) to argue that the High Court under Article 226 is not powerless to make appropriate orders to protect a person's interest where an injunction has been obtained from a civil court.
- He also referred to the Andhra Pradesh High Court decision in Rayapati Audemma … v. Pothineni Narasimham … (AIR 1971 Andh Pra 53) for the proposition that where the Code contains no express provision to implement a temporary injunction, a court can grant police aid under its inherent powers to secure the injunction's effectiveness.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sri Ganga Coal Storage Co. Ltd. v. State of West Bengal, (1979) 2 Lab LJ 294 (Cal). | Principle that ordinarily the High Court cannot be moved under Article 226 without taking recourse to proceedings under Section 144(2) CrPC; allowing Article 226 without Section 144(2) may frustrate Section 144(2), though exceptional circumstances may permit otherwise. | The Court relied on this proposition to hold that ordinarily Article 226 should not be used to circumvent S.144(2) and to guide its conclusion that the High Court should not pass orders to carry out injunctions (such as police pickets) by invoking Article 226 when Section 144(2) proceedings exist or have lapsed. |
| State of Madhya Pradesh v. Babulal, AIR 1977 SC 1718. | Authority for the proposition that the High Court under Article 226 may interfere to protect interests where an injunction exists; shows Article 226 is not necessarily powerless to grant protective relief. | The Court considered the decision but distinguished it: in Babulal the Supreme Court found the judgment to be illegal and in clear violation of law, so interference was warranted. The present case was found to be different because the lower court judgments had been made with authority and due consideration of law; thus Babulal was not applicable. |
| Rayapati Audemma … v. Pothineni Narasimham …, AIR 1971 Andh Pra 53. | Proposition that when the Code contains no express provision for implementing a temporary injunction, a court may grant police aid under its inherent powers to secure the injunction. | The Court acknowledged that this proposition is consistent with Order 39, R.1–2 CPC and the court's power to take steps against those who violate injunctions, but found the Andhra Pradesh decision to have little or no application to the facts of the present case. |
| Brojendra Nath Biswas v. Saukat Purkait (M.P. Case No. 921 of 1980 — Section 144(2) CrPC proceeding referenced) | Used as the factual/procedural record of a Section 144(2) proceeding initiated for the petitioner's protection; Executive Magistrate ordered enquiry and directed police to report and, if necessary, afford protection by posting a picket at petitioner's cost. | The order in that proceeding formed part of the factual background; a later order (dated 18-12-1980) was produced showing the petitioner had not pursued the Section 144(2) proceeding and that it had been directed to be filed (i.e., not proceeded with), which influenced the Court's view on the availability of Section 144 remedy and the appropriateness of Article 226 relief. |
Court's Reasoning and Analysis
The Court began by stating the factual matrix and the procedural steps already taken by the petitioner, including civil court orders and the Section 144(2) CrPC proceedings instituted before the Executive Magistrate. It then examined the core legal question whether the High Court under Article 226 may be moved to enforce or implement the practical incidents of a civil injunction — specifically police protection/picket — without first resorting to Section 144(2) CrPC or the remedies available under Order 39, R.1–2 CPC.
The Court relied on its prior observation in Sri Ganga Coal Storage Co. Ltd. v. State of West Bengal that, as a general rule, invoking Article 226 without taking recourse to Section 144(2) would frustrate the Code's provisions; only in exceptional circumstances could Article 226 be permitted without S.144(2). Applying that principle, the Court considered the representations and authorities cited by the parties.
Addressing Mr. Banerjee's contention that Article 226 is maintainable because Order 39, R.1–2 does not provide for police picket, the Court observed that Order 39, R.1–2 does contain provisions for taking measures against those violating injunctions and for protecting litigants' interests. Therefore, a proceeding under Article 226 solely for carrying out the incidents of an injunction (such as ordering police picket) would not ordinarily be maintainable.
The Court considered and distinguished the decisions relied on by Mr. Banerjee:
- In State of Madhya Pradesh v. Babulal, the Supreme Court intervened because the impugned judgment was illegal and in clear violation of law; the present case did not present an illegal judgment but judgments made with authority and due consideration, so the Babulal rationale did not apply.
- The Andhra Pradesh decision (Rayapati Audemma) recognizing the power to grant police aid under inherent jurisdiction was acknowledged to be consistent with Order 39 principles, but the Court found that decision had little application to the facts here.
Taking into account the produced order dated 18-12-1980 in the Section 144 proceeding which indicated that the petitioner had not pursued the S.144(2) proceedings (the proceeding being directed to be filed), and having regard to the principle that the High Court should not ordinarily pass orders under Article 226 that would have the effect of executing or substituting Section 144 machinery, the Court concluded that the interim order of injunction obtained on 13-10-1980 for posting police picket and protection should be dissolved.
Holding and Implications
Core Holding: Application allowed; the interim injunction directing police protection/picket is dissolved.
Direct effects on the parties:
- The application filed by respondents Nos. 4, 7, 12, 15 and 17 to vacate the interim order has been allowed.
- The interim injunction (the Rule dated 13-10-1980 directing respondents Nos. 2 and 3 to protect the Moukhali Fishery and to post a police picket) is ordered to be dissolved.
- There will be no order as to costs.
Broader implications:
- The Court reaffirmed the principle that, ordinarily, Article 226 should not be used to frustrate or circumvent the procedures under Section 144(2) CrPC where that procedure is available or has been initiated; only in exceptional circumstances may Article 226 be entertained without S.144(2).
- The opinion distinguishes earlier authorities invoked by the petitioner and indicates limited applicability of cases permitting police aid under inherent powers where the facts or legal context differ.
- No novel legal principle was declared beyond applying existing authorities to the facts before the Court; the decision operates as a resolution of the parties' dispute in this matter rather than the setting of a new precedent by the Court's own formulation in the opinion.
Application allowed.
1. This Rule with the corresponding interim order directing respondents Nos. 2 and 3 viz., Superintendent of Police Alipore and Officer-in-Charge, Canning Police Station respectively, to protect the fishery viz., Moukhali Fishery of Police Station Canning and for immediate posting of Police picket, was obtained on 13-10-1980.
2. The present application for vacating the interim order, has been filed by respondents Nos. 4, 7, 12, 15 and 17 in the Rule.
3. The fact, on which the Rule and an interim order as mentioned hereinbefore, was obtained, will have to be stated. It is the case of the petitioner that he is the sole proprietor of Moukhali Co-operative and has been conducting pisciculture at Village Moukhali, Police Station Canning. The petitioner has stated further that he instituted a Title Suit, being No. 25 of 1977, in the Court of the learned Subordinate Judge, 6th Court, Alipore, for interim order of injunction against respondents Nos. 5 to 21 and the learned Judge was pleased to grant such order of injunction and thereafter, on March 27, 1978, the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure was heard and was rejected.
4. Against such determination, an appeal was taken and in the appeal, the learned Additional District Judge, was also pleased to refuse to grant interim order of injunction, as was asked for Then, an appeal was taken to this Court, wherein Civil Rule No. 968(M) of 1978, was granted and by the said Rule, the respondents Nos. 5 to 21 herein, were restrained by an interim order of injunction from interfering with and or disturbing the possession or damage the fishery, till the disposal of the Rule or till the disposal of the application for interim order, as was pending before the learned Court below.
5. The said Civil Rule was made absolute on 1-9-78. It should also be noted that subsequently, the learned Additional District Judge, 13th Court, Alipore, also allowed the pending appeal and restrained the respondents Nos. 5 to 21 herein, from interfering with the plaintiff's possession of the suit property, till the disposal of the suit. These aspects or facts, are not in dispute.
6. The petitioner has alleged that the respondents concerned or as mentioned hereinbefore, having failed in their attempts to interfere with his possession, took the help and assistance of strangers and anti-social elements, for the purpose of dispossessing him from the fishery and against such threat, a proceeding under Section 144(2) of the Code of Criminal Procedure, being M.P Case 921 of 1980 (Brojendra Nath Biswas v. Saukat purkait), was initiated, before the learned Executive Magistrate, Alipore, 24 Parganas. In that proceedings, on October 6, 1980 the said learned Executive Magistrate, made an order directing the Canning Police Station, to enquire and report by 13-11-80 and also directed the authorities, that if necessary, the Officer-in-Charge concerned, should afford due protection to the petitioner, by posting police picket, at the cost of the petitioner. It is the further allegation of the petitioner that even in spite of such order, no help or assistance was given to him and as such, he approached the authorities concerned for police picket, but even then, nothing was done by such authorities. It has been categorically averred that even in spite of the order made in the Criminal Proceeding, the respondents Nos. 2 and 3 as mentioned above, have neither rendered any assistance to the petitioner nor have discharged their statutory obligations to protect the interest of the fishery, which according to the petitioner, would mean gross negligence on the part of those respondents. He has further stated that by such inaction or inability as mentioned above, those respondents have flagrantly violated the provisions of law and have absolutely failed to discharge their statutory obligations under the relevant rules and regulations. It is under those circumstances and in view of the fact that the petitioner was not afforded due opportunities to have the properties in issue, protected, the Rule was obtained on the day as mentioned above. At the time of issuing the Rule, the interim order as mentioned hereinbefore, was at first issued for a limited period, with liberty to the petitioner to apply for extension of the same, on the same application, on notice to the respondents. It appears that on 26-11-80, respondents now appearing through Mr. Ramapati Roy, appeared and on their prayer the matter was adjourned for two weeks and it was also directed that the interim order as issued, would continue in the meantime. The present application for vacating the interim order was filed on 22-1-81 and the same was finally fixed for hearing on the date, when I take up applications viz., on Tuesday last. On that date, on the prayer of Mr. Banerjee, the case was directed to be adjourned for a week. Mr. Banerjee has stated that after such mentioning, he informed Mr. Roy about the order as made by this Court. The following day, Mr. Roy mentioned the matter and stated that because of the interim order, which is pending and for vacating of which, the application has been filed by his clients, which again has been, adjourned, his clients have suffered and are suffering. There were claims and counter-claims over the manner in which case was mentioned and as such, even in spite of the predicament in which Mr. Banerjee has been placed, because of the death of the father of his learned instructing Advocate and considering the urgency of the matter, I had to take up this application for consideration. The facts which are admitted have been mentioned hereinbefore.
7. Mr. Roy appearing in support of the application for vacating the interim order, has now produced an order dated December 18, 1980, made in the said M.P Case No. 921 of 1980, which without any doubt, shows that the petitioner has not proceeded with the said proceedings under Section 144(2) of the Code of Criminal Procedure and as such, the said proceeding has been directed to be filed. There are other facts mentioned in the order itself, but I think, for the purpose of this application, I am not required to go into the facts. Admittedly, for the alleged infraction of the petitioner's right and that too by the respondents herein or their friends, associates and collaborators, the said S. 144(2) proceeding was initiated. The question arose as to when, such S. 144(2) proceeding was initiated for the protection of the rights and the same has been filed, whether a proceeding like this, which has been taken at least in aid of or for the purpose of having the order as made in such proceeding, executed, the party can proceed when the initial proceeding has been filed. I Lave already observed in the case of Sri Ganga Coal Storage Co. Ltd. v. State of West Bengal, reported in (1979) 2 Lab LJ 294 (Cal), that ordinarily, without taking, recourse to proceeding under Section 144(2), this Court cannot be moved under Article 226, as that would frustrate the provisions of Section 144(2) of the Code of Criminal Procedure, but there may of course be exceptional circumstances, when recourse to proceeding under Article 226 may be permitted, without taking recourse to proceeding under Section 144(2).
8. Mr. Banerjee, appearing in support of the Rule and opposing the application, has contended that since in the instant case, steps were taken or the grievance made by the petitioner, for the inaction of the authorities concerned, to give the petitioner necessary help and assistance in the matter of protecting his interest for the property in issue, even if a proceeding under Section 144(2) has been filed as mentioned above, an application under Article 226 would be maintainable, as under Order 39, Rules, 1 and 2, there is no appropriate provision for giving such protection as mentioned above. There is no doubt or any dispute that under Order 39, Rules 1 and 2 of the Code of Civil Procedure, there are provisions for taking steps and measures against persons, who indulge in violating or not carrying out the orders of injunction, as issued duly by the appropriate forum. In that view of the matter, I am of the view that a proceeding under Article 226 of the Constitution, for the purpose of carrying out the incidents of an order of injunction duly made by the competent court or for having such order of injunction enforced, would not be maintainable. Mr. Banerjee of course, on a reference to the determinations in the case of State of Madhya Pradesh v. Babulal, AIR 1977 SC 1718, contended that this Court, under Article 226, would not be powerless to interfere and make appropriate orders for the purpose of protecting the interest of a person, in respect of the properties for which he has got injunction from the appropriate civil court. The decision, in my view, and that too in agreement with Mr. Roy, appears to be not applicable in this proceeding. There, the Supreme Court had interfered, because the judgment as made, was illegal and in clear violation of law. The position in this case is quite contrary to such determination, because here the judgment has been made not illegally, but with authority and on due consideration of the provisions of law. Mr. Banerjee then referred to the Bench determinations of the Andhra Pradesh High Court, in the case of Rayapati Audemma… v. Pothineni Narasimham…., AIR 1971 Andh Pra 53. In that case, no doubt, it has been observed that there being no express provision in the Code for the purpose of implementing the temporary order of injunction court can grant police aid under its inherent powers. There can be no doubt as to such propositions because that is quite consistent with the provisions of Order 39, Rules 1 and 2 and more particularly when, for protecting the interest of the litigants the court has got that power to take appropriate steps against he, who violates, the order. Thus, the determinations of the Andhra Pradesh High Court in my view, has also no or little application in the facts of the present case.
9. The above being the position and when I am of the view, that when a proceeding 144(2) has either lapsed or has been filed and that apart, High Court should not ordinarily pass orders for the purpose of carrying out the orders of injunction, as duly issued by the Court of competent jurisdiction in a proceeding under Article 226, I think, the order of injunction as made should be dissolved and I order accordingly. The application is thus allowed. There will be no order as to costs.
Application allowed.
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