Dawson Miller, C.J:— The petitioner in this case moved the Sub-divisional Magistrate to take action under section 144 of the Criminal Procedure Code, against the opposite party and pass orders restraining them from interfering with his possession of certain lands. The petitioner's case was that he purchased the land at a Court sale and obtained delivery of possession from the Court in August 1921, and that a speedy remedy was necessary to prevent him from being obstructed, annoyed or injured by the interference of his possession by the opposite party. When the parties presented themselves before the Magistrate it appeared that the opposite party were the usufructuary mortgagees of the land under a mortgage dated November, 1920, and that the sale to the petitioner in 1921 had been declared at the time to be subject to the mortgage and that the mortgagees were in actual possession; and at the instance of the latter, who complained that their possession had been obstructed by the petitioner, the Magistrate passed an order under section 144, directing that the petitioner should abstain from interfering with the possession of the opposite party for a period of two months.

The petitioner then moved the District Magistrate to rescind or alter the order under clause (4) of the section. The grounds of the application as stated by the District Magistrate were (1) that the order of the Sub-divisional Magistrate was not sound and, (2) that the Sub-divisional Magistrate should have referred the opposite party to the Civil Court and upheld the petitioner's possession.

The District Magistrate, in view of certain rulings this Court, considered that he had no jurisdiction under section 144(4) to interfere and refused to entertain the application. The rulings upon which he relied are to the effect that the powers conferred by the 4th clause of the section are only exercisable when it is shown that the circumstances existing at the time the order was made had changed, rendering the order no longer necessary. The petitioner now moves this Court against the order. He does not contend before us that the District Magistrate had power to rescind the order of his subordinate; on the contrary he says, that the District Magistrate has no powers either of appeal or revision under section 144(4), his powers of interference under the 4th clause being confined to 1 cases where circumstances have arisen, since the original order was made, rendering the continuation of the order unnecessary or an alteration of its terms desirable, as laid down by the rulings referred to, and as no new circumstances have arisen in the present case he admits that the District Magistrate could not have taken any action. Why he approached the District Magistrate at all if this contention is right I have some difficulty in appreciating and no satisfactory explanation was forthcoming. The only reason that I can conceive for adopting the course taken is that he apprehended that this Court might refuse to exercise its powers of superintendence until all possible remedies by a subordinate Court had been exhausted. For my own part I can see no reason why the powers given in the 4th clause of the section should be confined to cases where there has been a change of circumstances since the original order was made. It seems to me that if the Magistrate has power to rescind an order previously made by himself, or his predecessor or his subordinate, under the section because the circumstances no longer require it to remain in force, he should equally have power to rescind it if he is satisfied that it never ought to have been made. There is nothing in the wording of the 4th clause which limits the powers of the Magistrate in the sense indicated, and I can see no valid reason why words of limitation should be read into the section which would have the effect suggested. It is clearly desirable that a Magistrate should not interfere with an order once made under the section unless very good reasons are disclosed for doing so. It may be equally desirable that those reasons should be clearly defined in the section itself, but that is a matter for the legislature, and, as the section at present stands, the powers given are in no way limited to cases in which the circumstances have altered. To read into the section words limiting its operation in the sense contended for would be to usurp the functions of the legislature which it is not within the competence of this or any other Court to do.

It was argued before us, however, that the order originally made was one which was outside the scope of section 144(1), and was made without jurisdiction, and that, in such circumstances, it should not be treated as an order made under that section at all, but as an unauthorized order made without jurisdiction and that this Court should exercise its powers of superintendence under section 107 of the Government of India Act, and set aside the order. No doubt this Court has interfered and exercised its jurisdiction in such cases, and if it could be shown that the order in the present case did not come within the powers conferred by the first clause of section 144 we should be entitled to interfere and set it aside.

It was also contended that an order which purported to be made under the first clause of the section, but was not in fact authorized thereby, could not be dealt with by the Magistrate under the 4th clause, not being an order made under the section at all, and that the Magistrate had no powers of revision in such a case. It is unnecessary to determine this question or even to determine the exact limits, if any, of the Magistrate's powers under the 4th clause of the section as, in my opinion, the order originally made appears to have been properly made under the powers granted by clause (1) and no ground for interference either by this Court or by the District Magistrate is made out. We might send the case back to be dealt with by the District Magistrate under the 4th clause, but as the order appears to have been properly made by the Sub-divisional Magistrate, acting under the first clause of the section, and as no other ground for interference is made out it would be a waste of time to remand the case to the District Magistrate merely for him to refuse the application. In my opinion this application should be rejected.

Mullick, J.:— I am of the same opinion.

If I have understood him correctly the learned vakil for the petitioner puts his argument in two alternative forms.

“First”, he says, “assume that this was a case in which the Sub-divisional Officer had jurisdiction to make an order under section 144, Criminal Procedure Code. In that event the District Magistrate had jurisdiction to alter or rescind that order and he having declined to hear the petitioner's application to this end, the Court might but for the objection about to be mentioned, have sent back the case to him to be dealt with according to law. I admit that this course is in conformity with the practice of this Court which requires that the petitioner shall exhaust his remedies in the Courts below before invoking the aid of this Court. But in this case the District Magistrate had no jurisdiction to grant my prayer and so I have a right to come direct to the High Court. He only had Jurisdiction to alter or rescind the order on the ground that there had been a change in the circumstances since the making of the order, but as I am attacking the propriety and legality of the order he had no jurisdiction to entertain my application”.

The reply to these contentions appears to be this. It is true that there are some decisions of this Court which support the learned Vakil's construction of clause (4) of section 144, but I think with the greatest respect that they unduly restrict the plain and unambiguous terms of the Statute. The words “alter or rescind” clearly empower the District Magistrate to modify or cancel the order upon any ground whatsoever. I am not impressed by the argument that to give the District Magistrate the power to examine the propriety and legality of the order would be to confer upon him powers higher than the Code accords to the High Court. The legislature has chosen in appropriate language within the section itself to vest the District Magistrate with a wide and unrestricted power of review and to render him independent of the provisions relating to appeal and revision and it is not open to us by reference to questions of policy to endeavour to give that language an arbitrary and limited meaning. The High Court of Calcutta took a somewhat similar view in regard to section 125, which relates to the cancellation by District Magistrates of bonds for keeping the peace [Nabu Sardar v. Emperor].

I think, therefore, that the District Magistrate had jurisdiction to entertain the petitioner's application but as the whole case is before us we should, in order to avoid delay, deal with the application ourselves in exercise of our powers of superintendence.

The learned Vakil's alternative contention is that the Sub-divisional Officer had no jurisdiction to make an order under section 144 in a case where there was a bonâ fide dispute between two parties as to possession; that his order in this case was not an order under the section and that he had no jurisdiction to alter or rescind it; in other words the District Magistrate had no jurisdiction to cancel an order even if satisfied that it was made without jurisdiction.

The conclusion is startling and is clearly not supported by the section. It would indeed be a strange result if the District Magistrate could interfere where his subordinate had acted with perfect regularity and not when he had been guilty of clear error and irregularity by assuming jurisdiction where he had no jurisdiction. The words “made under this section” in clause (4) of section 144 clearly mean “legally made or purporting to be made under this section”. No other interpretation would make the section intelligible.

As for the contention that a bonâ fide dispute as to possession ousts the jurisdiction of Magistrates to make an order under section 144 we have been referred to a number of decisions of this Court which may possibly seem to give some support to that view but in this particular case it cannot be said that the point directly arises. Here it is clear that there was no bonâ fide dispute as to possession and that the petitioner was acting unlawfully in attempting to disturb a zarpeshgi mortgagee whose interest had been declared not to have passed by the sale at which petitioner purchased.

But as the question has been argued at some length and is of some importance I think that I should state my view of the law.

Section 144 is of general application and contains nothing which ousts the Magistrate's jurisdiction in cases of bonâ fide disputes as to possession of land. But where section 107 or section 145 will meet the requirements of the case, section 144 is not an appropriate remedy and if it is found that the danger was not so imminent that it could not be otherwise averted an order under section 144 will generally be field to have been made without jurisdiction. Where it is clear upon the materials before the Magistrate that one party is in possession and that another whose claim to possession is a mere pretence is threatening to interfere with that possession the Magistrate is clearly entitled to resort to the special summary procedure of section 144 if immediate prevention or speedy remedy is desirable. Sometimes it may even be necessary to take action against the party who is actually in possession, but in every case it must be shown that the conditions required by the section exist. What the Court deprecates is the habitual and unjustifiable use of section 144 as a substitute for sections 107 and 145.

The expression “bonâ fide dispute as to possession” is ambiguous. A party may be acting with perfect bonâ fides in asserting a right to possession though he has no justification in law for doing so. On the other hand the materials before the Magistrate may show that evidence of possession on both sides is more or less equally balanced and that both are acting bonâ fide. Though jurisdiction to issue an order under Section 144 exists in either case the question will arise whether the issue of an order under section 144 will not involve the recognition of conditions which will coerce the Magistrate into taking action under section 145. The language of section 145 seems mandatory but on this point I need express no final opinion here.

It remains to consider what order should now be passed by us.

We have, as stated above, decided not to insist upon the petitioner's invoking the aid of the District Magistrate but to dispose of the whole matter ourselves. As to our jurisdiction there can be no doubt.

Now, if it had been shown that upon the information before the Magistrate the conditions required by section 144 had not been established so that the use of section 144 instead of section 107 or section 145 was a mere abuse of the process of the Court, or, that though made with jurisdiction, the order had resulted in something akin to the denial of the right of fair trial, we should certainly have interfered in exercise of our powers of superintendence.

But here the proceedings disclose no such defects and consequently there is no reason whatsoever to interfere.

Jwala Prasad, J.:— I would dismiss this application.

True, this Court has power under section 107 of the Government of India Act to set aside an order passed under section 144 of the Code of Criminal Procedure, if the order is outside the scope of section 144, clause (1), is ultra vires or has resulted in the denial of the right of fair trial as my learned brother, Mullick, J., puts it. Mr. Pal, who has argued the case on behalf of the petitioner, has failed to make out any such ground. He relies upon what he calls “the recent delivery of possession through the Civil Court” (to quote the words of ground No. 1 in his petition) as giving him khas possession of the land in dispute. The petitioner, however, purchased the property in execution of a money decree obtained in a Small Cause Court. At the time of the sale the opposite party filed an usufructuary mortgage deed, dated the 8th November, 1920, on the basis of which he alleged that he was in possession of the property. The fact was noted, and the petitioner purchased the property subject to the usufructuary mortgage. He could not possibly, therefore, obtain khas possession under the writ of the Civil Court, dated the 17th August, 1921. Mr. Pal contends that inasmuch as he had obtained possession under Order XXI, rule 95, of the Code of Civil Procedure, he must be deemed to have been put in khas possession of the land by the Civil Court. Assuming for the sake of argument that the writ of the Civil Court dalkhaldehani purported to have been executed under Order XXI, rule 95, it cannot possibly have the effect of ousting the mortgagee whose rights were expressly declared and protected at the time of the sale. The writ of delivery of possession upon which the whole contention of Mr. Pal is founded is of no avail to him, inasmuch as no actual possession of the land was delivered to his client. Mr. Pal then says that the dakhaldehani at least raised a bonâ fide dispute as to the possession of the property in question, which can only be enquired into in a proceeding under section 145 of the Code of Criminal Procedure. There is no substance in this contention. The petitioner purchased the property with full knowledge of the possession of the opposite party. His initial move in the matter by petitioning the Magistrate to take action under section 144 of the Code of Criminal Procedure, was obviously an attempt to obtain an order of the Magistrate with a view to interfere with the lawful possession of the opposite party. He must thank himself if the Magistrate, finding that the opposite party, and not he, was in possession of the land, passed an order against him under section 144 restraining him from interfering with the possession of the opposite party. His claim for possession was, therefore, a mere pretence and with a view to interfere with the undoubted possession of the opposite party. There was, therefore, no dispute, not to speak of a bonâ fide dispute as to the possession of the land in question. The case clearly comes within the observations made in the cases of Gouri Dutt v. Gobind Singh, Sukh Singh v. Prayag Singh, Jhaman Mahton v. Thakurai Mahton, Kali Prasad Gope v. Dodhai Gope and Nandkishore Sao v. Bikan Singh. In those cases it has been laid down that when one party is clearly in the wrong and threatens to usurp the rights of another, who is in actual possession of the land in dispute, the proper remedy is an order under section 144 or 107 of the Code of Criminal Procedure. In such a case section 145 has no application inasmuch as there is no dispute as to the possession of land. The petitioner has therefore failed to show that the Magistrate's order was without jurisdiction. He has equally failed to show that there was any denial of a fair trial of the case. The order sheet of the Magistrate shows that he passed the order in question after having heard the parties and considered the documents produced by them. The finding of the Magistrate that the opposite party was in actual possession, and not the petitioner, is unimpeachable.

In this view it is unnecessary to decide as to whether in a bonâ fide dispute as to possession of land the jurisdiction of the Magistrate under section 144 is ousted and that the only section applicable is 145 of the Code. The point has been strenuously argued at the Bar and we have been invited to give our opinion. My learned brother, Mullick, J., has gone into this question. I would venture to give my own view on the point.

To me it appears that when, in the course of a proceeding under section 144 of the Code of Criminal Procedure, the Magistrate finds that there is a bonâ fide dispute as to possession of land likely to cause a breach of the peace he is bound immediately to take action under section 145. Chapter XII comprising that section is headed “Disputes as to immoveable property”. The section says:

“Whenever a District Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land, or water or the boundaries thereof * * * * he shall make an order in writing”

and enquire into the fact of actual possession of the subject-matter in dispute. The word “shall” is mandatory. Therefore when the conditions laid down in the section, namely (1) that a dispute likely to cause a breach of the peace exists, and (2) that the dispute is with respect to any land or water, the Magistrate is bound to take action under section 145 and to declare that the party found in possession shall be so maintained until evicted therefrom in due course of law, or if he is unable to decide which of the parties is in possession, to attach the subject-matter under section 146. The object of section 145 is to provide effectively against a breach of the peace by making a permanent order regarding the possession of the parties.

Section 144 is a temporary measure which the Magistrate in his discretion may adopt for the immediate prevention amongst others of “a disturbance of public tranquillity or a riot or an affray”. Now, the threatened breach of the peace may be in connection with land. In this sense the Magistrate may in the first instance pass an order under section 144 against both or any one of the parties threatening to commit a breach of the peace in connection with the possession of land. Therefore the real question is not as to the power of the Magistrate in the first instance to issue an order under section 144 to prevent a breach of the peace concerning any land, but that what action the Magistrate ought to take after he comes to know at any stage of the proceeding under section 144 that the danger of a breach of the peace is due to a bonâ fide dispute, and not a mere pretence as to the possession of the land. The answer is that the Magistrate must then at once start an enquiry under section 145 of the Code either in continuation of the order passed under section 144 or in supersession thereof, inasmuch as the condition laid down for an enquiry under section 145 “that a dispute likely to cause a breach of the peace exists concerning any land” to quote the words of the section, will then have been satisfied. The section is imperative and enjoins upon the Magistrate to start an enquiry under that section whenever (directly) he “is satisfied from the police report or otherwise, such as an enquiry under section 144, that a dispute (real and bonâ fide, and not a mere pretence) exists”. The Magistrate cannot refuse in such a case to initiate proceedings under section 145 for in that case he will be refusing to exercise a jurisdiction vested in him by law and shirking the duty enjoined upon him by the section. In such a case the retention of the order under section 144 must lead to an irreparable injury to one of the parties, who must be in actual possession of the land, by his possession being interfered with, though for a temporary period, for one of the objects of section 144 is to prevent an obstruction, annoyance or injury, etc., to any person lawfully employed. There will then be obviously an improper use of section 144 and an abuse of the process of the Court, which my learned brother, Mullick, J., lays down as affording valid grounds to vacate an order of a Magistrate under section 144. Therefore, though the Magistrate may initiate a proceeding under section 144 and issue an order under that section in disputes concerning land, he will not be justified in refusing to convert the proceeding into an enquiry under section 145 when he finds that there is a bonâ fide dispute concerning the possession of land. In this case the Magistrate was informed by the petitioner that there was a danger of a breach of the peace concerning the possession of the land in dispute. He issued notice and made an enquiry as to possession on the date fixed. He came to the conclusion that the opposite party was in undoubted possession of the land and there was no dispute as to possession of the land in question. He therefore properly made his order under section 144 as against the petitioner. If, on the other hand, he had, upon the evidence placed before him by the parties, come to the conclusion that there was a bonâ fide dispute as to the possession of the parties, then he was bound to start an enquiry under section 145 either in continuation of his order under section 144 or in supersession thereof, for 145 is the only section under which an enquiry in such a case, i.e, where there is a danger of a breach of the peace concerning a dispute as to land, could be made. The continuance of the order under section 144 without instituting proceedings under section 145 as observed would then have been an improper use of section 144 and an abuse of the process of the Court, and a refusal to exercise jurisdiction vested by statute and we would have directed the Magistrate to exercise his jurisdiction under section 145 of the Code. Section 144 is a large and more general section than section 145. An order under that section can be made under various circumstances including a danger of a breach of the peace. Section 145 is of limited scope and applies only when there is a danger of a breach of the peace. The former is discretionary; the latter is mandatory. The latter provides for a thorough enquiry into the dispute as to possession of the parties which tends to a breach of the peace. Therefore when the special condition of section 145 is fulfilled, section 144 then yields to section 145 in the same sense that when he finds that there is a real dispute tending to a breach of the peace the Magistrate is bound to institute a proceeding under section 145 and enquire into the possession of the parties, irrespective of any order that he might have originally passed under section 144. This is a legal obligation cast upon the Magistrate under section 145.

I have carefully considered the authorities on the subject and particularly the language of sections 144 and 145, and the above appears to me to be the true scope and meaning of these sections. The language is clear and unambiguous. We have simply to interpret the sections as they are and cannot in any way limit or extend their scope on grounds of policy and other considerations which my learned brother Mullick, J., rightly deprecates and which is not our function but that of the Legislature. In addition to the authorities already quoted, the following may also be referred to: Parkar Mohto v. Ram Khelawan, Kaniz Amina v. The King-Emperor, Tarapada Bhattacharji v. The King-Emperor and Joyanti Kumar Mookerji v. J.B Middleton.

The next question raised by Mr. Pal is as to the power of the Magistrate under clause (4) of section 144, to rescind or alter any order made under clause (1) of the section by himself or any Magistrate subordinate to him or his predecessor in office. This question also does not really arise, for Mr. Pal did invoke the power of the District Magistrate, who refused to interfere with the order passed by the Sub-divisional Magistrate. He has come to this Court. We have, no doubt, Jurisdiction to deal with the order of the Magistrate and to interfere or set it aside in case it was without jurisdiction or resulted in a denial of a fair trial. No doubt, we insist that a party should exhaust all his remedies in the Courts below before he comes to this Court. This is only a practice and a very desirable one; but there is no absolute bar in law to the party coming direct to us under section 107 of the Government of India Act, when there is no right of appeal. Even if it was necessary that Mr. Pal should have gone to the District Magistrate which he actually did, and the District Magistrate whether for reasons good or had refused to interfere, I do not know why he has raised this question now. In ground No. 2 of his petition to this Court he has attacked the order of the District Magistrate of the 3rd of May, as being without jurisdiction and has urged that:

“The learned District Magistrate ought to have interfered under section 144, clause (4), of the Code of Criminal Procedure even on the merits of the case”.

to use the exact wording of the petition; yet Mr. Pal curiously enough argues that the District Magistrate had no power to interfere with the order of the Sub-divisional Magistrate inasmuch as the order was attacked as being without jurisdiction. Why Mr. Pal is anxious to limit the power of the District Magistrate is better known to himself; but the words in that section “rescind or alter” are wide enough to vest the District Magistrate, mentioned in that clause, with unlimited power to deal with an order passed under clause (1) of the section, on the question of jurisdiction as well as upon the merits. Mr. Pal was trying to limit the meaning of the word “rescind” which it naturally bears. The word “rescind” literally means “re” again, “scindere” to cut off, to cut short, to remove. In the Imperial Dictionary the word “rescind” is said to bear the following meaning: “to abrogate, to revoke, to annul, to recall, to reverse, to vacate, by the enacting authority or by superior authority; as to rescind a law, a resolution, or a vote; to rescind an edict or decree; to rescind a judgment”. This makes quite clear the sense in which the word has been used in clause (4) of section 144 of the Code of Criminal Procedure. The Magistrate himself who passes an order under clause (1) of the section, or his superior authority may set aside or vacate the order when it is found to be void ab initio for want of jurisdiction, or is had on merits or is rendered unnecessary by subsequent events, such as the danger of a preach of the peace ceasing, or for any other cause. Under this clause the Magistrate, who issues an order under clause (1) in the first instance, often discharges or sets aside the same against both or one of the parties as the case may be, or alters it by drawing up a proceeding under section 145 of the Code when he finds that the case is a fit one for an enquiry under that section. The clause, therefore, is not capable of bearing the limited meaning sought to be imposed upon it by Mr. Pal. I confess that I had not so clear a view of the clause when in the case of Madan Lal v. Phool Chand Rai I followed the view expressed in the case of Lala Gopal Nath Sahi v. Rai Bahadur Baldeo Das Birla. The point arose only incidentally in that case and my attention was not drawn to the Full Bench decision of the Calcutta High Court, in the case of Nabu Sardar v. Emperor and the case of Re Mare Gowd, where a similar clause in section 107 of the Code of Criminal Procedure has been interpreted to have a wide meaning. I therefore agree with the view of the learned Chief Justice and Mullick, J., on this point.