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Abdul Majid Basunia And Others v. Nripendra Nath Mazumdar Opposite Party.
Judgment Summary
Factual and Procedural Background
Five persons (the petitioners, described as the second party in the opinion) challenged an order made by the Deputy Magistrate of Jalpaiguri, Mr. K.P. Ghose, under Section 144 of the Criminal Procedure Code dated 11 December 1933. The dispute arose from the establishment of a new market ("not" / "hat") at Taluk Jamgram situated about a furlong from an older market at Baura. Both markets began to sit on the same days (Mondays and Thursdays).
The local police of Patgram reported that there was no apprehension of breach of the peace. The Sub-divisional Magistrate (SDM), at the instance of the first party, was not satisfied that an order under Section 144 should be made against the second party on that report alone. The SDM issued an order on 1 December 1933 calling upon the first party to adduce evidence on 8 December 1933 and inviting the second party to appear and represent their case. Police warnings under Section 154, IPC, were served on both parties.
The SDM was absent on 8 December; Mr. K.P. Ghose, the Deputy Magistrate, was in charge of the SDM's current file. Witnesses for the first party were examined (and cross-examined by the second party) on 9 December. On 11 December 1933, after considering the materials, Mr. Ghose issued orders under Section 144 CrPC forbidding the second party and the public generally from holding the market at the stated place and days. The petitioners challenged that order by way of a rule, and they also took the matter to the Deputy Commissioner under Clause (4), Section 144 CrPC.
Legal Issues Presented
- Whether Mr. K.P. Ghose (the Deputy Magistrate), who was only in charge of the Sub-divisional Magistrate's current file and who made the order on the morning the SDM had returned but had not attended court, had jurisdiction to make the final order under Section 144 CrPC.
- Whether the petitioners were deprived of procedural rights (specifically the opportunity to adduce evidence and be heard) in the event the order of 11 December 1933 is to be treated as an ex parte order under Clause (2) of Section 144 CrPC and thus entitled to reconsideration under Clause (4) and an early hearing under Clause (5).
- Whether the terms of the order and the notice issued pursuant to it conformed to the limits and requirements of Section 144 CrPC (including Clause (3) as to orders affecting the public generally and the geographic limits of the order).
Arguments of the Parties
Petitioners' (the second party) Arguments
- The petitioners contended that Mr. K.P. Ghose, being merely in charge of the SDM's current files and with the SDM having returned that morning, had no jurisdiction to pass final orders in the case.
- They petitioned that a local investigation be made and that they be allowed to adduce evidence and have witnesses examined on their behalf before the matter was disposed of; the petitioners' prayer for such further inquiry and evidence was refused and, as a result, the case was disposed of on the evidence adduced solely by the first party.
- They asserted their rights under Clause (4) and Clause (5) of Section 144 CrPC to appear before the Magistrate and be given an early opportunity to show cause against any ex parte order and to adduce evidence to seek rescission or alteration of the order.
Respondents' / Other Relevant Positions
- The police of Patgram reported that there was no apprehension of a breach of the peace by reason of the proximity of the two markets and their meeting on the same days.
- The Sub-divisional Magistrate had originally called for evidence from the first party and permitted the second party to appear and represent their case; the SDM was not satisfied that an order under Section 144 could be made on the police report alone.
- The Deputy Commissioner, when addressing the jurisdiction point under Clause (4), Section 144, observed that Mr. K.P. Ghose had jurisdiction because he was dealing with the SDM's file during the SDM's absence on tour; although the SDM returned on the morning the order was passed, it was not known that the SDM would attend Court that day and he in fact did not do so until late.
- No other detailed counter-arguments from the first party or the State are set out in the opinion beyond these factual positions and the Deputy Commissioner's view on jurisdiction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ashutosh Roy v. Harish Chandra, AIR 1925 Cal 625 | Interpretation of Clause (3), Section 144 CrPC — an order directing the public in general to abstain from frequenting or visiting a particular place can be made only within the limitations imposed by that clause. | The Court relied on this authority to conclude that the impugned order and the notice (which purported to restrain the public generally beyond the proper geographic and statutory limits) were not warranted by Clause (3) of Section 144 CrPC. |
Court's Reasoning and Analysis
The Court divided its analysis into two principal strands: (A) jurisdiction of the Deputy Magistrate to make the order, and (B) procedural and substantive validity of the order and the notice issued under it.
A. Jurisdiction
- The petitioners argued that Mr. K.P. Ghose lacked jurisdiction because the Sub-divisional Magistrate had returned on the morning the order was passed and therefore the Deputy Magistrate was no longer empowered to pass final orders. The Deputy Commissioner had already considered and disposed of this contention under Clause (4), Section 144 CrPC.
- The Deputy Commissioner's view (quoted in the opinion) was that Mr. Ghose had jurisdiction because he was dealing with the SDM's file during the SDM's absence on tour; the SDM returned that morning but it was not known he would attend Court and he did not attend until late.
- The Court accepted the Deputy Commissioner's reasoning: it found that Mr. K.P. Ghose was entitled to deal with the case as he did and that no other disqualification of Mr. Ghose to make an order under Section 144 was suggested. Consequently, the jurisdictional challenge was rejected as not well founded.
B. Procedural and Substantive Validity of the Order
- The Court identified that the second ground of challenge related to procedure: the petitioners had sought a local investigation and asked that they be allowed to adduce evidence and have witnesses for themselves examined before disposal. The Deputy Magistrate allowed cross-examination of the first party's witnesses but refused the petitioners' prayer for local inquiry and to call their own witnesses; the case was then disposed of on the evidence adduced by the first party alone.
- The Court analysed the statutory scheme under Section 144 CrPC: an ex parte order may be made in emergency situations under Clause (2); Clause (4) permits an aggrieved party to appear before the Magistrate who made the ex parte order and ask for rescission or alteration; and Clause (5) requires the Magistrate to afford an early opportunity to the applicant to appear and show cause against the order. If the 11 December order were to be regarded as ex parte, the petitioners were entitled to such an opportunity and to adduce evidence in support of their application for rescission or alteration, but the record showed they were not given that opportunity.
- However, the Court found a further, independent defect in the order and the notice issued thereunder. The Court set out the text of the order as drawn up on 11 December 1933 and then compared it with the notice served on the petitioners. Several inconsistencies and over-breadth were identified in the notice and the order:
- The order as drawn up included a direction purportedly "under Section 114 of the Cr PC" (as transcribed in the opinion), whereas the operative direction in the SDM's disposal was to "issue orders under Section 144 of the Cr PC" forbidding holding hats at Jamgram Taluk west of Baura. The opinion reproduces both wordings and highlights the divergence between the order's terms and the notice served.
- The notice that was actually served was couched in terms "far wider than the terms of the order" — specifically, the notice purported to restrain holding or attending a hat "at or near Taluk Jamgram" without a proper determination of the exact geographic limits within which the order was intended to operate.
- Crucially, as to orders directed to the public generally, the Court relied on Ashutosh Roy v. Harish Chandra to note that Clause (3), Section 144 CrPC allows an order against the public in general only within the limitation that it be directed to persons frequenting or visiting a particular place. The impugned notice and order, in so far as they purported to restrain the public generally without adhering to these limits, were not warranted by Clause (3).
- Because of these defects — procedural (denial of the statutorily mandated opportunity if the order is treated as ex parte) and substantive/formal (inconsistency and over-breadth between order and notice; failure to conform to Clause (3) limits) — the Court concluded the order could not stand even if characterized as an ex parte order. The Court therefore held that the Rule should be made absolute and ordered the impugned order set aside.
Holding and Implications
Holding: Rule made absolute; the order dated 11 December 1933 under Section 144 CrPC issued by Mr. K.P. Ghose is set aside.
Implications:
- The direct effect is that the specific order prohibiting the petitioners and the public generally from holding or attending the market at the specified times and place (the order of 11 December 1933) has been annulled.
- The Court left open the possibility for authorities to take preventive action in the future, should such action be necessary for the maintenance of public peace — meaning the factual situation may be revisited, but any future preventive order must comply with the procedural requirements and the statutory limits of Section 144 CrPC as explained in the judgment.
- The opinion does not state that it establishes a new broad precedent; it applies existing statutory provisions and the precedent cited (Ashutosh Roy v. Harish Chandra) to the facts before the Court and resolves the contested order accordingly.
R.G
Disposition: Rule made absolute.
JUDGMENT
1. This rule has been issued at the instance of five persons against whom an order under Section 144 of the Cr PC, was made by the Deputy Magistrate of Jalpaiguri on 11th December 1933. The order was made in connexion with a not which was established at Taluk Jamgram at a distance of about a furlong from an old and long established not which was in existence at a place called Baura. The two hats began to sit on one and the same days, namely Mondays and Thursdays. For the purposes of this case it is necessary to set out a few facts. The police of Patgram, within whose jurisdiction the places aforesaid are situate, submitted a report to the effect that there was no apprehension of the breach of the peace by reason of the hats being situated in close proximity to each other and though they were being held on one and the same days. This report was placed before the Sub-divisional Magistrate at the instance of the first party but the Sub-divisional Magistrate was not satisfied that upon such report, challenged though it was by the first party, he would be justified in making an order under Section 144 of the Cr PC, against the second party. On 1st December 1933 he made an order calling upon the first party to adduce evidence on 8th December 1933, in order to show that there was really an apprehension of an immediate breach of the peace and he also made an order calling upon the second party, the petitioners in this Rule to appear before him and represent their case, if they liked to do so. In the meantime the police appears to have served warning notices sunder S. 154, I.P.C, on both the parties. On 8th December 1933 the Sub-divisional Officer was away on tour and the Deputy Magistrate, Mr. K.P Ghose, was in charge of the current file of the Court of the Sub-divisional Magistrate. He was busy with some other case on that date and could not therefore take up the present case till the next day, i.e, the 9th December 1933. On the date last-mentioned seven witnesses were examined on behalf of the first party and were cross-examined on behalf of the second party, the petitioners before us. On 11th December 1933 Mr. K.P Ghose on a consideration of the materials that he had before him decided to issue orders under Section 144 of the Cr PC, forbidding the second party as also the public generally from holding the hat. It is this order under Section 144 of the Cr PC, that was issued by Mr. K.P Ghose against which the present rule is directed.
2. One of the grounds on which this Rule has been issued relates to the question of jurisdiction of Mr. K.P Ghose to make the order aforesaid. The question of jurisdiction arises in this way. On the date on which Mr. K.P Ghose made the order the Sub-divisional Magistrate appears to have returned from his tour and was present at the head quarters; and the contention put forward on behalf of the petitioners is to the effect that in such circumstances Mr. K.P Ghose who was only in charge of the current files of the Court of the Sub-divisional Magistrate had no jurisdiction to deal with the case and pass final orders on it. This question has been considered by the Deputy Commissioner to whom an application was made by the petitioners subsequently under Cl. 4, Section 144 of the Cr PC. The learned Deputy Commissioner has disposed of this question in the following words:
“It was further argued that the learned Deputy Magistrate who passed the order complained of had no jurisdiction to do so. But in my opinion he had jurisdiction inasmuch as he was dealing with the file of the Sub-divisional Magistrate during the latter's absence on tour. It is true that the Sub-divisional Magistrate returned from tour the morning on which the order was passed, but it was not known that he would attend Court and he did not do so until late.”
3. In the circumstances referred to by the learned Deputy Commissioner we think it was open to Mr. K.P Ghose to deal with the case as he has done. It is not suggested that Mr. K.P Ghose is otherwise disqualified from making an order under Section 144 of the Cr PC. This ground therefore in our opinion is not well founded.
4. The second ground on which the order complained of is assailed relates to a question of procedure and it arises in I this way: It has already been stated: that by the order which the Sub-divisional Magistrate had made, the first party had been called upon to adduce evidence and the second party, that is to say the petitioners before us, were allowed to appear and represent their case if they wanted to do so. It appears that the learned Deputy Magistrate allowed the second party to cross-examine the witnesses examined on behalf of the first party. When the witnesses for the first party had been examined a petition appears to have been put in on behalf of the second party in which it was prayed that a local investigation might be made and also that evidence might be taken and then the case disposed of. On this petition the learned Deputy Magistrate made an order in these words:
“The first party was asked to adduce evidence in support of their prayer for proceeding against the second party and that has been done. The second party was allowed to cross-examine the witnesses examined. This may be filed.”
5. Apparently, by this petition the second party prayed that the case might not be disposed of on the evidence of the witnesses examined on behalf of the first party alone but that a local investigation might also be made and further that witnesses might be allowed to be examined on their own behalf. Otherwise there is no meaning in the statement that is to be found in this petition and which is to the effect that evidence might be taken of the witnesses before the case was disposed of. The position therefore was that this prayer of the petitioners being refused the case was disposed of on such evidence only as the first party had adduced in the case. A complaint with regard to this matter also appears to have been made before the Deputy Commissioner when the second party moved him under Cl. (4), Section 144 of the Cr PC, for setting aside the order. This will appear from ground No. 2 taken in the petition for revision filed in this connexion. Under the law an ex parte order under Section 144 of the Cr PC, may be made in cases 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: Cl. (2), Section 144 of the Cr PC. But when such an order is made it is clear from the provision of Cl. (4) of that, section that a party aggrieved might appear before the Magistrate who had made the order ex parte and ask him to rescind or alter the order and Cl. (5) of the section says that where such an application is received the Magistrate shall afford to the applicant an early opportunity of appearing before him, whether in person or by pleader, and showing cause against the order.
6. If the order which was made by the learned Deputy Magistrate under Section 144 of the Cr PC, on 11th December 1933, be regarded as an ex parte order made under the provision of Cl. (2), S. 144 of the Code, the petitioners undoubtedly had the right to have an opportunity of appearing before the Magistrate and showing cause against the order, and one of the ways in which they could have done so was by adducing evidence for the purpose of satisfying the Magistrate that the order should be cancelled or rescinded. The petitioners also had the right, when the order is treated as one under S. 144, Cl. (2) of the Code, to go before the District Magistrate and to ask for a similar opportunity. If the order is to be treated under that sub-section the petitioners are entitled to have that opportunity but neither the trial Magistrate nor the learned Deputy Commissioner has given such an opportunity to the petitioners. The position therefore is that if the order is to be treated as one passed ex parte, the petitioners must now be given an opportunity to adduce evidence in order to show cause against it and to have it rescinded or altered. But then the difficulty in allowing this order to remain as an ex parte order against the petitioners, with liberty to adduce evidence in order to have it rescinded or altered is that the order is not in accordance with law for certain reasons which we shall presently give. The order as drawn up on 11th December 1933 runs in these words:
“I do hereby direct under Section 114 of the Cr PC, the persons named in the margin in particular and the public generally from the date of the promulgation of this order to abstain from holding or attending not at or neat Taluk Jamgram, P.S Patgram, on Mondays and Thursdays and not to do any unlawful acts by seizing and restraining traders and threatening or committing violence to people so as to dissuade them from attending Baura not and not to commit any breach of the peace or disturb the public tranquillity.”
7. This order is set out in the notice that was issued and subsequently served on the petitioners. It cannot be gainsaid that the terms of this notice must follow the terms of the order in pursuance of which the notice is issued. If one looks at the terms of that order one finds that what was stated there was something different. What was stated was this:
“Issue orders under Section 144 of the Cr PC, forbidding the public generally and the persons named in the petition particularly to hold hats at Jamgram Taluk west of Baura not on Mondays and Thursdays, etc.”
8. While it may be conceded that it is open to a Magistrate to make the order in such terms as holding a not at or near the Taluk Jamgram in order that it may not be possible for the party against whom such an order is made to evade the terms of the order by removing the hat, the holding of which is sought to be prevented to a short distance at the same time it is perfectly clear that before a notice containing such terms is issued there must be a proper determination of the question as regards the limits within which the order is to be operative. So far as the order of Mr. K.P Ghose is made in pursuance of which the notice was issued there was no question of restraining the petitioners from holding or attending the hat at any place beyond the limits of Jamgram Taluk. But the notice that was issued, as has already been stated, was couched in terms far wider than the terms of the order itself. Then again so far as the order means to operate as against the public generally it does not follow the terms of Cl. (3), S. 144 of the Code as has been pointed out in the case of Ashutosh Roy v. Harish Chandra . AIR 1925 Cal 625. Such an order under S. 144 of the Code in so far as it directs the public in general to abstain from attending the hut is not warranted by the terms of Cl. (3), S. 144 of the Code because such an order can only be against the public in general within the limitation imposed by that clause, namely, that it can be made against them only when frequenting or visiting a particular place. In that way again the order is not one which is warranted by the provisions of the law. We are of opinion therefore that the order complained of in this case, even though it may be treated as an ex parte order made against the second party, cannot be allowed to stand for the reasons which we have already given. The Rule, in our judgment, should be made absolute and we order accordingly. The result is that the order complained of is set aside leaving it to the authorities to take preventive action in future should such action be necessary for the maintenance of public peace.
R.G
9. Rule made absolute.
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