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Case Number

Criminal Revn. No. 208 of 1950

Attorney(S)

R.K.Ghosh
K.Patnaik

Judges

Ray, C.J
Narasimham, J.

Acts

sections of the Code of Criminal Procedure
passed.7. Sub-s. (3) of Section 144
sub-section (3) of Section 144

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Smart Summary

Judgment Summary — Revision under Section 144, CrPC (Narasimham, J. and Ray, C.J.)

Factual and Procedural Background

This petition challenges an order dated 29-4-1950 made by the Sub-Divisional Magistrate (SDM) of Nawapara under Section 144 of the Code of Criminal Procedure (CrPC). The SDM's order restrained the general public from purchasing or exporting Kendu leaves from Nawapara thana but expressly exempted one Ramji Purushottam. No ad interim order appears to have been passed and the affected parties were not afforded an opportunity to make submissions before the Magistrate made the order absolute.

The Magistrate acted on a police report which described Ramji Purushottam as the contractor for Kendu-leaf purchases in Khariar estate and reported a likelihood of serious breach of the peace if others were permitted to buy. The police report also stated that the zamindar of Khariar claimed an exclusive right to sell Kendu leaves (including those growing on tenants' holdings), a right recently being challenged by some tenants. The primary dispute is described as between the zamindar and his tenants over rights to sell Kendu leaves.

The record shows an earlier similar SDM order dated 3-5-1949 which was the subject of Cr. Rev. No. 218 of 1949 before the High Court; the High Court indicated the dispute was civil in nature and suggested that actions under Sections 107 or 145 CrPC, if appropriate, be taken rather than summary orders. A subsequent order (effectively extending the earlier order) dated 2-7-1949 was set aside in Cr. Revn. No. 228 of 1949. Despite those High Court directions, the Magistrate again passed the 29-4-1950 order now under revision.

Legal Issues Presented

Whether an order under sub-section (3) of Section 144 CrPC may validly be addressed to the general public of a large area (here, Nawapara thana) — i.e., the proper construction of the word "place" in Section 144(3).
Whether it was proper for the Magistrate to pass the summary restrictive order (and to repeat such orders) in circumstances where the dispute appears primarily civil in nature and where the High Court had previously directed that Sections 107 or 145 CrPC should be considered instead of summary Section 144 orders.
Whether repeated successive orders under Section 144 so as to confer a practical monopoly on one party (by excluding rivals) constitute an impermissible permanent interference with private rights.
Whether preventive action in future seasons should be taken under Section 107 or under Section 145 CrPC (the Court noted this question was not argued fully and did not decide it).

Arguments of the Parties

Petitioner's Arguments (Mr. Ghose)

The general order is outside the scope of sub-section (3) of Section 144 CrPC; specifically, the word "place" must be given a restricted meaning, and an order addressed to the general public of as large an area as Nawapara thana is invalid.
The Magistrate's summary order was highly improper in view of clear directions given by the High Court in Cr. Rev. Nos. 218 and 228 of 1949 that, where there is apprehension of breach of the peace, the Magistrate should start proceedings under Section 107 or Section 145 CrPC as appropriate rather than pass summary Section 144 orders.

Magistrate / Police Position (as recounted by the Court)

The Magistrate acted on a police report stating that Ramji Purushottam was the contractor for Kendu leaves in Khariar estate and that permitting others to purchase might lead to a serious breach of the peace.
The police report also indicated that the zamindar claimed an exclusive right to sell Kendu leaves (including those on tenants' holdings) and that some tenants were challenging that right, creating the risk of disturbance.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Moti Lal G. v. Emperor, AIR 1931 Bom. 513	Support for a restricted construction of the word "place" in the context of Section 144(3).	Noted as one of the earlier decisions that gave "place" a narrower meaning; considered but ultimately not followed as definitive by the Court in this case.
Abdul Majid v. Nripendra Nath, A.I.R. 1934 Cal. 393	Also cited for a restricted construction of "place".	Referred to as part of earlier authorities taking a restricted view; the Court observed later decisions took a different view.
Abdul Karim S. v. Emperor, A.I.R. 1937 Lah. 80	Authority holding that an order addressed to the general public of a district (Lahore district) can be valid under Section 144(3).	Placed among later decisions indicating that "place" may include a large area; contributed to the Court's conclusion that size alone does not invalidate a Section 144(3) order.
Emperor v. Afaq Hussain, A.I.R. 1941 All. 70 (Full Bench)	Held that "place" in Section 144(3) may be a large area and that the place must be sufficiently defined so the public is reasonably notified of its extent.	The Court expressly agreed with this Full Bench decision and relied on it to hold that the Magistrate's order could not be impugned solely because it was addressed to the general public of Nawapara thana.
F.E. Chresten v. Carter, AIR 1939 Pat. 512	Authority criticizing repetition of successive Section 144 orders which result in permanent interference with private rights.	Referred to by the Court to support the view that successive or repeated Section 144 orders creating de facto permanent restrictions are deprecated and that the Magistrate's repetition of such orders was improper.
Bindeshwari Singh v. Raghunandan Mahto, AIR 1950 Pat. 559	Also critical of the practice of repetition of successive Section 144 orders culminating in permanent interference with private rights.	Invoked alongside F.E. Chresten to justify interference with the Magistrate's practice of issuing repeated summary orders and to set aside the impugned order.
Cr. Rev. No. 218 of 1949 & Cr. Revn. No. 228 of 1949 (High Court judgments)	Prior High Court directions that the dispute was civil in nature and that preventive action, if required, should be taken under Section 107 or Section 145 CrPC rather than by summary Section 144 orders.	The Court relied on these earlier High Court decisions to criticize the Magistrate for disregarding explicit guidance and for repeating the same type of summary order despite being warned.

Court's Reasoning and Analysis

The Court's analysis proceeded in two principal strands corresponding to the petitioner's main contentions.

Construction of "place" in Section 144(3):
The Court considered Mr. Ghose's argument that "place" must be read narrowly (so that large areas like a full thana would not qualify). After reviewing earlier decisions that leaned to a narrow view, the Court relied on later authorities — notably the Full Bench decision in Emperor v. Afaq Hussain — which held that "place" may denote a large area so long as the area is sufficiently specified and the public is reasonably notified of its extent. The Court expressly agreed with that Full Bench view and therefore concluded that the Magistrate's order could not be invalidated solely because it was addressed to the general public of Nawapara thana.

Ray, C.J. concurred, elaborating that "place" connotes an area (having length and breadth) and that the term is intended to denote certainty rather than size; thus, size alone does not render a Section 144(3) order invalid.
Proper exercise of preventive powers and repetition of Section 144 orders:
The Court found greater force in the petitioner's second contention. It noted that the SDM had previously issued similar orders which were the subject matter of two High Court revisions (Cr. Rev. Nos. 218 and 228 of 1949). The High Court had indicated the dispute was civil in nature and suggested preventive action under Sections 107 or 145 CrPC where appropriate. Despite those clear directions, the Magistrate again passed a summary, broad order without hearing both sides or issuing an interim order restraining both parties.

The Court emphasized that in disputes involving rights between parties (as here between zamindar and tenants), the Magistrate should, in fairness, have issued an ad interim order restraining both sides and then heard them before making an order absolute; he also ought to have examined the Wajib-ul-arz on which the zamindar's claim rested. The Court said it did not wish to decide the civil-rights question (which may be the subject of regular litigation), but it condemned the practice of repeating successive Section 144 orders to achieve a de facto permanent monopoly for one party (which would amount to a perpetual injunction).

The Court observed that in cases of imminent breach of the peace the Magistrate retains discretion to take appropriate preventive action and in extraordinary emergencies might temporarily interfere with rights. However, where the High Court has already indicated the matter is civil and suggested other procedures, repeating the same summary device is improper. The Court invited the Magistrate's attention to authorities (F.E. Chresten and Bindeshwari Singh) criticizing such repetition.

The Court also considered what preventive action might be appropriate in the future: it declined to decide whether Section 145 applies to disputes of this type (the question had not been fully argued). It suggested that if, after due enquiry, the Magistrate is satisfied that the zamindar's asserted right should be respected until a civil court decides otherwise, and if certain named individuals are likely to challenge that right causing breach of the peace, the Magistrate could take preventive action under Section 107 CrPC against the ring-leaders named in the police report. The Court reiterated that repeating successive Section 144 orders in a summary manner without hearing parties and contrary to High Court instructions is highly improper.
Disposition:
Having considered both lines of reasoning, the Court concluded interference was required even though the impugned order had already expired by efflux of time; the purpose was to prevent encouragement of the Magistrate's practice at the next plucking season. The Court therefore set aside the Magistrate's order dated 29-4-1950. Ray, C.J. agreed that the order, though expired, was improper when passed.

Holding and Implications

Holding (core ruling):

SET ASIDE: The Court set aside the Sub-Divisional Magistrate's order dated 29-4-1950 made under Section 144 CrPC.

Implications:

The direct effect is that the Magistrate's impugned order is declared improper and is quashed; although that order has already expired by efflux of time, the Court intervened to prevent repetition of the same improper practice in future seasons.
The Court endorsed the Full Bench view that the word "place" in Section 144(3) may denote a large area so long as the area is sufficiently defined; therefore an order addressed to the general public of a defined large area (such as a thana) is not per se illegal.
The Magistrate was censured for repeatedly issuing summary Section 144 orders in circumstances where the High Court had indicated the dispute was civil and suggested recourse to Sections 107 or 145 CrPC; the practice of issuing successive Section 144 orders that would amount to a permanent interference with private rights was deprecated.
The Court did not decide whether Section 145 CrPC applies to disputes of this particular character (the point was not fully argued) and left open the question of using Section 107 or Section 145 after due enquiry; it specifically noted that preventive action under Section 107 against named ring-leaders might be appropriate in future if the Magistrate is satisfied after inquiry.
No broader novel legal rule was laid down by the Court beyond its acceptance of the Full Bench view on "place" and its admonition against repetitive, summary orders under Section 144 that produce permanent effects; the decision's practical consequence is to restrain similar future practice by the Magistrate and to direct attention to appropriate alternative procedures.

This summary is derived exclusively from the provided opinion text and does not add information beyond what the opinion contains.

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Taturam Sahu v. The State Of Orissa

Narasimham, J.:— This petition is for revising an order under Section 144 of the Cr PC, passed by the Sub-Divisional Magistrate of Nawapara on 29-4-1950, restraining the general public from purchasing or exporting Kendu leaves from Nawapara thana and exempting one Ramji Purushottam alone from the operation of the said order. No ad interim order appears to have been passed and the affected parties were not given an opportunity of making their submissions before the Magistrate prior to his making the order absolute. He acted on the report of the police to the effect that Ramji Purushottam was the contractor for the purchase of Kendu leaves in Khariar estate and that there was a likelihood of serious breach of the peace if other persons were permitted to purchase the said leaves in that estate. It further appears from the police report that the zamindar of Khariar was claiming the exclusive right to sell Kendu leaves even of those trees which grow on the tenants' holdings though this right was being recently challenged by some of the tenants. Thus though the order may at first sight appear to be the result of friction between Ramji Purushottam on the one hand and other rival purchasers of Kendu leaves in Nawapara thana on the other, in reality the dispute is primarily between the zamindar of Nawapara on the one hand and his tenants on the other as regards their respective rights to sell Kendu leaves growing on the lands of the tenants. In a dispute of this type where rights of the parties are involved the learned Magistrate should, in all fairness, have issued an ad interim order restraining both parties and then after hearing them in Court made the order absolute against one party. The learned Magistrate has not done anything of this kind nor has he cared to scrutinise the Wajibularz which seems to be the main basis of the claim made by the zamindar to sell Kendu leaves growing within his zamindari. We do not wish to say anything as regards the respective rights of the parties to sell Kendu in Nawapara thana. This may become a subject-matter of a regular litigation in future.

2. Mr. Ghose's main contentions in favour of the petitioner are: (i) such a general order is-outside the scope of sub-section (3) of Section 144 of the Cr PC, and as such is invalid and (ii) in any case such an order was highly improper in view of the clear directions given by this Court in Cr. Revs. Nos. 218 and 228 of 1949 to the effect that in future if there was apprehension of breach of the peace the learned Magistrate should start proceedings either under section 107 or under Section 145 of the Cr PC, as the case may be and not pass summary orders of this type.

3. The first contention of Mr. Ghose is based on a construction of sub-s. (3) of S. 144 which says that an order under that section may be directed “to the general public when frequenting or visiting a particular place”. Mr. Ghose has urged that the word ‘place’ must be given a fairly restricted meaning especially when it is preceded by the words ‘frequenting’ or ‘visiting’ and that an order addressed to the general public in a small locality such as a portion of a town or a village may be a valid order but an order addressed to the general public of such a large area as Nawapara thana was clearly outside the scope of that section. In support of this argument he has mainly relied on — ‘Moti Lal G. v. Emperor’, AIR 1931 Bom. 513 —‘Abdul Majid v. Nrependra Nath’, A.I.R 1934 Cal. 393 and some other decisions where the expression ‘place’ has been given a somewhat restricted construction. But later decisions have taken a different view and have gone to the extent of saying that there is not much distinction between a place and an area and so long as it is clearly specified and well-defined in the order there is no illegality in including a large area such as a district within the scope of an order under Section 144 of the Cr PC. For instance in — ‘Abdul Karim S. v. Emperor’, A.I.R 1937 Lah 80 an order addressed to the general public of Lahore district was held to be valid. The entire law on the subject has been fully dealt with in a Full Bench decision of the Allahabad High Court in — ‘Emperor v. Afaq Hussain’, A.I.R 1941 All 70 where it was held that a particular place referred to in Section 144(3) of the Cr PC may be a large area & all that is necessary is that the place should be so sufficiently defined that the public is reasonably notified of its extent. With respect, I am inclined to agree with the aforesaid decision and to hold that the order of the Magistrate cannot be impugned solely because it is addressed to the general public of Nawapara thana.

4. But the second contention of Mr. Ghose appears to have much force. The Sub-Divisional Magistrate of Nawapara passed a similar order on 3-5-49. That was taken up in revision before the High Court in Cr. Rev. No. 218 of 1949 and though the Hon'ble Judges did not like to disturb the order which had ceased to be in force due to efflux of time they made it clear that the dispute was of a civil nature and that it would be proper to leave the parties to their civil rights. They further added that in there were sufficient materials action may be taken either under section 107 or under Section 145 of the Cr PC. The aforesaid judgment of the High Court was delivered on 29-7-1949 but on 2-7-49 the Sub-Divisional Magistrate issued a fresh order thereby, in effect, extending the operation of his previous order for a further period of two months. This second order was held to be invalid and the High Court in Cri. Revn. No. 228 of 1949 set it aside. It is strange that notwithstanding the clear instructions given to the Magistrate in the aforesaid two judgments of the High Court he should have again persisted in passing a drastic summary order of the present type. We do not wish to fetter, in any way, the discretion of the Magistrate to take appropriate action when there is imminent apprehension of breach of the peace. It may sometimes be necessary in cases of extra-ordinary emergency even to interfere with the rights of the parties. But in the present case where the High Court had clearly indicated that the dispute was of a civil nature and that, if necessary, preventive action under other sections of the Code of Criminal Procedure should be taken it was highly improper on the part of the Magistrate to have again repeated the same order. It is true that the present order under revision has already expired by the efflux of time. But it is necessary to interfere with the order so that the Magistrate may not be encouraged to use his powers in the same manner when there is apprehension of trouble at the time of the next plucking season. In this connection we would invite the attention of the Magistrate to — ‘F.E Chresten v. Carter’, AIR 1939 Pat 512 and — ‘Bindeshwari Singh v. Raghunandan Mahto’, AIR 1950 Pat 559 where this type of repetition of successive orders under Section 144 of the Cr PC so as to result in a permanent interference with private rights was deprecated. If at the time of every plucking season the learned Magistrate passes a summary order of this type thereby conferring a monopoly on Ramji Purushottam such an order would, in effect, be a perpetual injunction in favour of Ramji Purushottam's monopoly and against all rival purchasers.

5. As to what should be the nature of the preventive action which the Magistrate may have to take if there is recrudescence of trouble at the next plucking season it is difficult for us to lay down any hard and fast rule. We do not wish it to be understood that a dispute of this type would come within the scope of Section 145 of the Cr PC. This question has not been fully argued before us and it is not necessary to decide it in the present proceeding. But if after due enquiry the learned Magistrate is satisfied that the right of the zamindar to sell Kendu leaves throughout his zamindari even though they might have grown on the tenants' lands should be respected until a decision to the contrary is given by the civil Court and if he considers that certain interested parties are likely to challenge that right resulting in breach of the peace there seems to be no reason as to why he should not take preventive action under Section 107 of the Cr PC against the ring-leaders whose names have been given in the police report. But to repeat successive orders under Section 144 of the Cr PC in a summary manner without hearing the parties and in direct contravention of the instructions given by the High Court is highly improper.

6. We would, therefore, set aside the order of the Magistrate dated 29-4-1950.

Ray, C.J:— I agree that the Magistrate's, order though no longer in force for efflux of time, shall be declared to have been improper when passed.

7. Sub-s. (3) of Section 144 of the Cr PC, has been more or less constantly a source of controversy in the matter of preventive order under the section. I would agree with my learned brother's view buttressed as it is by the Full Bench decision of the Allahabad High Court, referred to in his order, that the word “place” is wide enough, in its connotation, to mean “an area, big or small”. ‘Place’ certainly does not mean “geometrical point of space on the earth”. Such a point is not understood by the word “place”. A ‘place’ has innumerable such points conjoined together to produce “an area”. It must mean area having length and breadth. “An area” defined by specified boundaries and described otherwise to delimit its ambits is known as “a place”. There is nothing in the section to indicate that the place is either as big or as small as a town, village, market-place or otherwise. It may be as big as it can be. The word “place” has been used to denote ‘certainty’ rather than ‘size’.

8. One could be compelled to interpret the word as an area relatively small only if the preventive order, in its bearings of operative ness and suitability for obedience, would fail of itself or, in other words, could not be amenable to enforcement. “The public generally” can be subjected to the inhibition irrespective of any limitation, but “the relevant activities” must relate to a place or locality. This is intended by the words “when frequenting or visiting a place”. In this case, the acts prohibited are those of “purchase and export of Kendu leaves” within the area specified in that behalf in the order concerned. As at present advised, I shall reserve my opinion as to if issuance of a prohibitive order of the kind during every successive season for collection, sale and export of kendu leaves would infringe its temporary character assigned to it within the section and would, therefore, be bad in law; but I am sure such repeated orders in favour of one of the several belligerent parties having conflicting claims to a particular right or property would be beyond the scope and object of the section and hence improper. As such it should be interfered with by this Court but always subject to the condition that the Magistrate must have had other legally available means of preventing imminent breach of the peace. In this connexion, I would refer the Magistrate to what my learned brother has already said and with which I am in perfect agreement.

C/D.H

9. Order set aside.

Taturam Sahu v. The State Of Orissa

Judgment Summary — Revision under Section 144, CrPC (Narasimham, J. and Ray, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Mr. Ghose)

Magistrate / Police Position (as recounted by the Court)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Taturam Sahu v. The State Of Orissa

Comments