1. This application relates to the expunging of certain remarks made by the Sub-Divisional Magistrate of Aurangabad in an order disposing of a proceeding under Section 144 of the Cr PC. The petitioner was not a party to the said proceeding and yet it is said that the learned Magistrate made those unwarranted and unjustified remarks without making him a party to the proceeding or giving him an opportunity to explain his conduct. The petitioner is an Honorary Magistrate of the sub-division and he is also the Manager of the Kunda Estate, known as the Bengali Estate, in the district of Gaya. The circumstances which led to the proceeding under S. 144, relate to a dispute with regard to an area of about 66 bighas of land situate in village Sansha, police station Daudnagar, in the sub-division of Aurangabad. The petitioner states that 19 bighas and odd of these lands belonged to one Rameshwar Gosain, of which the Kunda Estate and other co-sharers were the landlords. The Estate obtained a decree for rent against this Rameshwar Gosain and, in execution of the said decree, the lands in question were sold and purchased by the decree-holder landlord of which the landlord obtained delivery of possession sometime in 1939. It is then stated that in 1940-1941, the landlord, of which the petitioner is the Manager, settled the said lands measuring 19 bighas and odd along with the other lands which have been recorded as ghairmazruamalik with Ramchander Ahir, Bharat Ahir and others. It appears that subsequently in August 1949 there was a proceeding under S. 144 between these settlees under the landlord and the outgoing tenants Rameshwar Gosain and others, in which proceeding the settlees were party 1 while Rameshwar Gosain and others were party 2. In that proceeding, an application was filed on behalf of the Kunda Estate by the petitioner supporting the settlement in favour of party 1 to the proceeding. The learned Magistrate disposed of the proceeding on making a local inspection, and the entire finding appears to have been based upon the local inspection made by the Sub-Divisional Magistrate himself. The petitioner alleges that a few months before the initiation of the 144-proceeding, party 2, Rameshwar Gosain and others had filed a complaint against the settlees and also against the men of the landlord in which they complained that the members of party 1, the settlees, were trying to dispossess Rameshwar Gosain and others by force. In that case, the complaint was dismissed by the Sub-Divisional Magistrate himself in which, he found that the outgoing tenants, Rameswar Gosain and others had no right and interest in the lands in question and that they should, if at all, have recourse to civil Courts. The petitioner alleges that, in view of that decision, the 144-proceeding should not have been decided against the new settlees, who were-party 1 in that case, and the learned Magistrate did so merely because he was inimical to the petitioner and, in the course of his order made those unwarranted observations. It appears that party 1, to the 144-proceeding had moved the District Magistrate against the order under S. 144, but the learned Additional District Magistrate, while disposing of the application, refused to interfere because the order under S. 144 had spent its force, though the Additional District Magistrate realised that the order of the Sub. Divisional Magistrate had been passed without properly or duly considering all the facts and circumstances relating to the dispute. The petitioner appears to have moved the District Magistrate also for expunging the remarks in question and for making a reference for the purpose to this Court. But the learned Additional District Magistrate of Gaya, who heard the said application, rejected the same on 11-4-1950, observing that it would be immaterial to take any action on those observations, because he had already found when rejecting the application against his order under S. 141, that the findings of the learned Sub-Divisional Magistrate were not correct. The petitioner has, therefore, now moved this Court for expunging the remarks made by the Sub-Divisional Magistrate. The remarks complained of are to be found at various places in the course of the order and they have been stated in para. 7 of the application. Paragraph 7(A) refers to the remark which runs as follows:

“There was no sign of habitation within a few miles except the lonely houses of these Gosains who have lived in this jungle and sandy tract for years and years and have now become a victim of the wrath of the absentee landlord Bengal Kunda Estate in this case and their powerful Manager Babu Harnedra Nath Pathak who also happens to be a Honorary Magistrate of the place and who are bent upon driving out these powerful Gosains tenants from their lands.”

7(B): “I am surprised that the Manager who happens to be a Hony. Magistrate should file such a false petition making false allegation which is contrary to facts and farthest from truth.”

7(c). “The intention of the Kunda Estate is now to settle lands of these Gosains tenants with other tenants of the village and to make them fight and cause bloodshed and not which is most reprehensible conduct of the proprietor and his Manager. I am convinced from my local inspection and 1 am constrained to remark that the conduct of the Manager of Kunda Estate has been most reprehensible in acting in this manner.”

A rule was issued by this Court calling upon the learned Sub-Divisional Magistrate to show cause why these remarks should not be expunged from the order in question, but it appears that the learned Magistrate has been either transferred or has gone on leave, and no explanation has been submitted by the Magistrate who passed this order. A notice was also served upon the State of Bihar who are the opposite party to this application, but, on their behalf also no one has appeared to oppose this application. The application is, however, opposed by Mr. B.N Mitter, counsel appearing on behalf of the persons who were party 2 to the proceeding under S. 144.

2. I should like to say as little as possible against the order of the learned Magistrate disposing of the proceeding under S. 144, because I have no desire to prejudice the case of party 2, but I must observe that the procedure adopted by the learned Magistrate in disposing of the proceeding under S. 144 was really extraordinary. The dispute related to a large area of land and it was a dispute as to the possession of immovable property. He himself observed that some of the tenants were on the side of the landlord while some of the tenants whose interest is said to have been sold off were opposing the landlord and the other set of tenants. In such a case, if there was an apprehension of breach of the peace, the proper proceeding was a proceeding under S. 145 and the matter should have been decided in such a proceeding, but the Magistrate, instead of adopting the proper procedure known to the law in the circumstances of the case, proceeded to dispose of the matter under S. 144 and that also not upon any material but largely and mainly upon his local inspection. I do not find from the record that there was any memorandum prepared by the learned Magistrate of this local inspection nor has such a memorandum been referred to in the order itself. It appears that, in connection with a previous dispute between the parties in respect of some of these lands, the matter was decided by the same learned Magistrate on 7-1-1949. There, it appears, party 2 to the proceeding had alleged that they were likely to be dispossessed of the lands in question by the new settlees, that is, the members of party 1 in collusion with the landlord and, therefore, action should be taken against them. On this complaint, there was an enquiry by the Magistrate and the said learned Magistrate himself dismissed the complaint under Section 203 of the Cr PC. In dismissing the complaint, the learned Magistrate himself observed as follows:

“The landlord be appeared and he has produced the Dakhaldehani papers showing that the lands of the complainant were sold for arrears of rent and purchased in court auction sale and delivery of possession was obtained on several occasions in the years 1938 and onwards….. it is admitted before me by the complainant that he has not paid any rent for the lands up to the year. There is no case worth the name which the complainant can claim in this Court. His remedy lies in the civil Court. The complainant's allegation does not dispose any criminal offence nor is it plausible story.”

3. After this emphatic observation made by the learned Magistrate himself, it was singularly inappropriate on his part to proceed under Section 144 of the Cr PC, and what is worse to dispose of this proceeding not by taking any evidence in the case or after making the landlord a party but on his local inspection. I am, however, not concerned with the 144-proceeding itself, except, incidentally, to show that the remarks made in his order as to the petitioner and his conduct were quite unjustified, because the learned Magistrate had not made the petitioner a party to the proceeding nor had he called for the production of evidence in support of his allegation in the petition filed by him that the Estate had settled the land with party 1. If he had called for these documents and made the petitioner a party, no would have found, presumably, as he himself did find on a previous occasion, that the allegations were correct. The Additional District Magistrate, while disposing of the proceeding, observed that “the dispute related to possession over a vast tract of lands, measuring about 66 bighas which should not have been dealt with and disposed of by a summary proceeding under 8144, Code of Criminal Procedure…. the proper course for the Magistrate in such disputes was to decide the question of possession once for all in a regular proceeding under Section 145 of the Cr PC. It appears that, the landlords, after having obtained dakhaldehani, settled the lands with the applicants who are armed with hukumnama and rent receipts in respect of the lands and whose documentary evidence of possession cannot easily be brushed aside. There was furthermore a criminal case in respect of some of these very lands and between the same parties. The same Magistrate, had by his order dated 7-1-1949, dismissed the complaint under Section 203 of the Cr PC, and in that substantive case of O.P Rameshwar Gossain who was directed to Civil Court for the remedy of his claim, the learned Sub-Divisional Magistrate had accepted the delivery of possession in favour of the landlords from whom the applicants base their claim.”

4. Either these materials were before the Magistrate or these materials which were produced before him on the previous occasion were not before him. If these materials were before him, as the order of the learned Additional District Magistrate appears to indicate, then indeed it is very surprising that he should have disposed of the 144-proceeding without reference to them and yet he should have suggested in his order that the conduct of the Mmager of the Estate was most reprehensible and that he had filed a false petition making false allegations which were contrary to facts and farthest from truth. These strong observations should never have been made by the learned Magistrate without either consulting the materials which were placed before him and on which on a previous occasion he had himself been convinced, or at least without giving an opportunity to the petitioner be present before him to explain the allegations made in the petition. Indeed, in the circumstances of the case it is most remarkable that he should have made these remarks and he should have gone back upon his own finding on a previous occasion. Mr. B.N Mitter, appearing for party 2 to the S. 144 proceeding suggested that probably at the time of the passing of his order, the learned Magistrate was not aware of the order which he had passed on a previous occasion, that is, on 7-1-1949. In the first place, I cannot imagine that, at least, party 1 who were the settlees under the landlord would not have drawn the attention of the Magistrate to his previous order; but, even if it were so, the Magistrate should have realised the risk of making these ex parte assumptions against the conduct of the petitioner, who was an Honorary Magistrate of the locality and was the Manager of a fairly big estate in the Sub-division as it appears from the materials and whose apparent respectability could not be lightly questioned. Prima facie, there was no reason to distrust the allegations made in the petition. It is true that the learned Magistrate made his own local enquiry. But it has been repeatedly pointed out that a person disposing of a judicial proceeding should never base his decision on merely a local inspection. There is, no doubt, some amount of latitude in a S. 144-proceeding. But even then the learned Magistrate should have remembered that it is a judicial enquiry and if he makes a local inspection, that may be only for the purpose of appreciating the materials produced by the parties and not for making extra-judicial assumptions of his own. I, therefore, see not the slightest justification for the remarks which have been made by the learned Magistrate in the course of that order. The Additional District Magistrate did not think it fit to make a reference to this Court because in his opinion the order had already spent its force, and he had observed that the findings of the learned Magistrate were incorrect. The petitioner has a just grievance in this matter. It was quite wrong on the part of the Magistrate to have made those remarks against him and, in my opinion, this is a fit case in which the remarks should be directed to be expunged. The petitioner has alleged that the learned Sub-divisional Magistrate made those remarks because he was inimically disposed towards him and that he also disposed of the 144 application contrary to his own findings on a previous occasion on account of this enmity. Be that as it may the Magistrate has not submitted any explanation, and it would be unnecessary for me to decide as to what the motives of the learned Magistrate actually were, though his order, to my mind, appears somewhat incomprehensible in view of the previous order which he had himself passed. In any case I consider that this application for expunging the remarks of the learned Magistrate must be allowed.

5. That this Court has the power to do so in a case like this can hardly be questioned in view of the provisions of Section 561-A of the Cr PC, and, if reference to any decision is necessary, reference may be made to the decision in Karamat Ullah v. Emperor, A.I.R (27) 1940 Lah. 42 : (41 Cr. L.J 380).

6. The rule is accordingly made absolute.

V.R.B

7. Rule made absolute.