Satish Chandra Roy And Others v. The Emperor Opposite Party.

Mitra, J.:— This is a rule calling upon the District Magistrate of Pubna to show cause why the proceedings under sec. 144 of the Procedure Code against the Petitioners now pending in the Court of the Sub-divisional Magistrate of Serajgunge should not be set aside. The learned Advocate General has shown cause.

The police-report on which the proceedings are based makes out a sufficient case for the exercise of the preventive jurisdiction of the Magistracy, but the various orders passed from time to time are irregular. The first and initial order under sec. 144 of the Code was recorded on the 4th July last, an order which the Sub-divisional Magistrate had no warrant to make under the sec. 144. It forbids the Petitioners from establishing a hât at a certain place and gives a vague direction forbidding them to interfere in any way with the trade of the Dariapur bazar and hat. It is practically conceded that this order cannot stand.

It is contended, however, that the order of the 4th July was subject to modification on the Petitioners showing cause, and such modification was made later on and thus the irregularity and the vagueness of the order were cured. But the order of the 4th July was not merely to show cause why an order under sec. 144 should not be made. It was in substance and form an order under sec. 144, sub-sec. (2) and the proceedings subsequent to the order are in substance under sub-sec. (4) for the rescission or modification of the original order. The order of the 4th July had effect at once and it would last for two months from its date unless modified in the meantime. The order does not expressly say that it would last for so many days only.

The date fixed for showing cause was the 16th July and on that day cause was shown by the Petitioners. No final order was, however, passed on that day and the Sub-divisional Magistrate expressed an intention to visit the locality and to receive further evidence. But at the same time he directed that the injunction already issued by him would continue. In the view we take it was not necessary for him to say that the injunction would continue when final adjudication under sub-sec. (4) was put off. It continued under the law. It seems that the Sub-divisional Magistrate was under the impression that his order of the 4th July would last until the 16th July only. This is an erroneous view of the legal effect of his order as expressed by his own words.

On the 23rd July the Sub-divisional Magistrate held a local enquiry but he could not finish it and he fixed the 6th August for further enquiry. He was even then labouring under the erroneous impression that his order of the 4th July, continued by his order of the 16th July, expired on the 23rd July. If he intended to limit the operation of his orders he did not use appropriate words. On this last day he again passed an order for the further continuance of the injunction. He, however, modified the nature and terms of the “injunction” as he calls it. He in fact calls it a further injunction and by it he forbade the Petitioners from holding a hât on their land on Mondays and Thursdays or interfering in any way with the traders and marketers visiting the existing hât at Dariapur. He also explained in his order that the effect of his original order was modified. But still it was not his final order—final under sub-sec. (4). He fixed the 6th August for further enquiry.

The order of the 23rd July is in better and more legal from than the original order and is not vague, and the learned Advocate-General in showing cause has relied mainly on it and has contended that the orders of the 4th and the 16th July should be ignored and this order should be considered as the first proper and legal order under sec. 144, and so we ought not to set it aside and the subsequent proceedings. But this purports to be an interlocutory order. The Sub-divisional Magistrate might cancel the previous proceedings and make a fresh order. He might pass successive orders, the period in all not exceeding two months; but here the order of the 4th July had still legal operation and the intermediate orders not contemplated by sub-sec. (4) could not be passed unless we take them to be new orders.

Further enquiry as the consequence of the Petitioners showing cause might continue until the expiry of two months from the date of the original order, and at the end of that time the order must expire by operation of law, but the period cannot be indirectly and indefinitely extended. We cannot but set aside the order of the 23rd July as it is an interlocutory order not contemplated by law. We should not, however, be understood as encouraging delay in disposing of applications for rescinding or modifying ex parte orders under sec. 144, sub-sec. (2). Such applications should be disposed of as quickly as possible, but it is not illegal to put off an enquiry for a reasonable time within two months.

Witnesses were examined on the 6th, 7th and 8th August but on the 6th August we issued the present rule. On the 8th August, the Sub-divisional Magistrate received an intimation of our issuing the rule. He ought then to have stayed all further proceedings in the matter. But the impression did not leave him that its previous order had a temporary effect, that is until the next day of hearing. He accordingly issued a fresh injunction pending the disposal of the rule in this Court. He ought not to have done so as he had no authority under the law to do so and as such an order might frustrate the very object of the rule issued by this Court. By issuing the rule, this Court obtained full seisin of the proceedings and it was for this Court to pass ad interim orders, if it thought fit to do so. The Sub-divisional Magistrate could not do so.

We cannot ignore such a series of mistakes and hold as asked by the learned Advocate-General that our functions are at an end and our powers of general superintendence should not be exercised because the order of the Magistrate of the 8th August may be considered to be in correct form under sec. 144. If it was a new order superseding all previous orders, the Magistrate had jurisdiction to make it provided it did not interfere with our order and the time was not extended beyond two months. But it is very inexpedient to allow Magistrates to pass such intermediate orders after a rule has been issued by this Court.

We observe that the 8th September has been fixed for further hearing of the case by the Sub-divisional Magistrate, that is to say, a day beyond two months of the 4th July. The order of the Magistrate would expire in due course of law on the 3rd September, even if we were not to interfere with it, and it is highly irregular to make an order which would under sub-sec. (5) be nugatory. We are therefore unable to uphold the proceedings in this case and we direct that they be quashed. But we are informed that there is a likelihood of the breach of the peace, though Mr. Jackson says on behalf of his clients that there is none. This is a matter for the Sub-divisional Magistrate to decide on proper materials, and if he be satisfied that there is still a likelihood of the breach of the peace on account of the existence of two rival hâts, he ought to institute proceedings under sec. 107 of the Procedure Code against both sides.

The powers given by the Code to Magistrates to take measures for the prevention of offences like those apprehended in the present case are specified in, Part IV of the Code. Sec. 144 is intended to have operation to meet emergencies in urgent cases only. Unless specially directed by a Notification in the Official Gazette by the Local Government, an order under sec. 144 has an operation limited in time. The Magistrate cannot by passing successive orders extend the operation of an order indirectly beyond the time limited by sub-sec. (5). Chap. XII of the Code is limited to cases of disputes as to possession of land or water or use of land or water. It does not cover a case of rival hâts which may cause a breach of the peace. The most appropriate section in cases like this is sec. 107 by which a Magistrate may bind down parties for a length of time.

N.K.B

Rule made absolute.