Ganpat Singh v. Emperor

1. The facts of this case are as follows: On 17th November, 1917, the Sub-Divisional Magistrate of Jehanabad acting upon a police report issued notices upon Actar Singh and his party, only requiring them

“not to put obstruction with regard to the said kasht land in any way if you have any objection to make yon can do so in this Court on 4th December, 1917.”

2. The boundaries of the land were then given. On 4th December, 1917. Actar Singh and his party appeared in Court and the learned Subordinate Magistrate in some fifteen lines disposed of his claims to the land as being a mere pretence, and recorded:

“I make the notice under Section 144 of the Cr PC, absolute against the second party.”

3. Aotar Singh being dissatisfied with this decision took it to the District Magistrate under Cl. 4, S. 144. The learned Magistrate after examining the claims of the parties, came to the conclusion that the claim of Actar Singh's party was not a mere pretence but was the real truth and that Ganpat Singh had no claim to cut the crop which was in dispute. He therefore cancelled the order made by the Sub-Divisional Magistrate, and substituted an order of his own forbidding Ganpat Singh's party to out the crop. The proceedings of the learned Sub-Divisional Officer were not in our opinion, ultra vires. As we said in the case of Kaniz Amina v. Emperor(1) if it is clear upon a perusal of the police papers that the claim of the disturber of the peace is a mere pretence, a breach of the peace may often be avoided by making it clear to him that the Court will not permit the disturbance which he has want only created. In such circumstances it is not expedient that the party entitled to peaceful possession be harassed by proceedings under S. 145. In that sense the case as dealt with by the Sub-Divisional Magistrate is distinguishable from that of Kaniz Amina's case but the subsequent proceedings of the District Magistrate appear to us to be an even greater innovation than that which we set ourselves to prohibit in the case of Kaniz Amina v. Emperor. An order has been made establishing the claim of Actar Singh's party which had been stigmatized by the Sub-Divisional Magistrate as a mere pretence, and keeping Ganpat Singh, who had been held to have a genuine claim out of possession for two months. The learned Government Advocate has not been able to find any case upon this point, and indeed, we imagine, it would be impossible to find any precedent upon which the proceedings of the District Magistrate could be supported. Clearly Cl. 4, S. 144, contemplates only a change in the nature of the order made, and not a change in the party against whom it is made. The learned Magistrate's views on this point as expressed in his letter to the Assistant Registrar dated 22nd February, conveniently ignore the existence of Ch. 12, Code of Criminal Procedure We set aside the order of the District Magistrate against Ganpat's party as being without jurisdiction. We do not think it necessary to interfere with his order setting aside the Sub-Divisional Officer's order against Actar Singh's party, for the reason that it was clearly within the Magistrate's jurisdiction to set aside that order if he thought that it was unnecessary or unjust. The position will therefore be that both orders are set aside.

4. We note that on the papers coming back to the Sub-Divisional Magistrate he, on 20th December issued notice against both parties restraining them from cutting the disputed drops. On 3rd January on it being represented to him by both parties that the paddy had been cat and removed he was of opinion that no action was called for and the notices issued were concelled. Had they not been cancelled we should have been obliged to say that the notices issued on 20th December, 1917 were in no degree distinguishable from notices under S. 145, Cls. (1) and (4), but inasmuch as the Magistrate has taken action cancelling the proceedings on the ground that no further dispute exists, we may say that the proceedings taken on 20th December by the Sub-Divisional Magistrate have been ended by an order which might have been made under S. 145, Cl. (5), and that it is not necessary for us to re-open that part of the case.

V.S/R.K

5. Order set aside.