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Case Number

Criminal Revision No. 362 of 1935

Judges

Rowland, J.

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Smart Summary

Expert Legal Analysis — Summary of the Provided Opinion

Factual and Procedural Background

This is an application to set aside an order passed under Section 144 of the Code of Criminal Procedure by the Sub-Divisional Magistrate (S.D.M.) of Benguserai. A motion challenging that order was presented to the District Magistrate at Monghyr and was rejected. The application arises out of a dispute over administration, management and physical control of an estate known as Neola or Neolagarh.

Background facts, as recorded in the opinion:

Neola (Neolagarh) was the property of Chaudhury Biswanath Singh and is now admitted to be the property of his minor posthumous son, Chandramauli Prasad.
Chandramauli's mother, Krishnakanta Kumari, was guardian until her death on March 3, 1935. After her death two groups claimed to be administering the estate for the minor:
- The "first party": Musammat Jagrupa Kumari (widow of the great-grandfather of Chandramauli) and her adherents.
- The "second party": Chotey Narain Singh (maternal grandfather of Chandramauli) and his adherents.
A Police report dated May 13, 1935, recommended notices under S.144 to both parties to prevent troubles and breaches of the peace connected with the estate. The specific incident reported was that in village Bhawanandpur crops had been grown, harvested and stacked on the khalihan, and a dispute over removal of those crops was likely to lead to a breach of the peace.
On May 22, 1935 the Magistrate recorded his opinion that a speedy remedy was desirable to prevent imminent danger. However, instead of issuing notices to both parties, he issued a S.144 notice only to members of the first party directing them to abstain from approaching the specified places or handling the minor's grains, and not to commit breaches of the peace.
The first party filed a written statement asking that the S.144 order against them be rescinded and that a similar order be issued against the opposite party. After hearing pleaders, the Magistrate confirmed the order against the first party on June 7, 1935.
The District Magistrate, on revision, refused to interfere, observing that the respondents were in possession of the kachary, had paid land revenue and cess, and that their possession had been rightly maintained by the Sub-divisional Officer.
The High Court requested a report from the District Magistrate clarifying whether the S.144 order was intended as a temporary measure pending proper proceedings under S.145 or S.107 CrPC, or whether it was final. The report stated the intention was not to pursue the matter beyond steps to prevent a breach of the peace and that if disturbance recurred after two months steps would be taken under S.107.
The petitioners complained that the Magistrate's findings on the merits (including findings of falsity of petitioners' claims and findings on possession) rested on no evidence and that documents placed before the Magistrate were not marked or entered on the record.

Legal Issues Presented

Whether the Magistrate had sufficient material to find imminent danger justifying proceedings under Section 144 CrPC.
Whether proceedings under Section 144 were appropriate when the Magistrate addressed questions of possession of immovable property (rather than proceeding under Section 145 or Section 107 CrPC).
Whether the Magistrate's findings and ultimate order were based on evidence, and whether passing such an order without taking or recording evidence resulted in a denial of a fair trial.

Arguments of the Parties

Applicants' (petitioners') arguments

The Magistrate had no evidence before him to find that there was imminent danger necessitating an order under S.144.
The Magistrate should not have entered into questions of possession of immovable property by using S.144; such matters are more appropriately determined under S.145 (or S.107) CrPC.
The Magistrate's findings were based on no evidence; documents placed before the Magistrate were not marked or put on the record, and thus an order was passed prejudicial to the petitioners without supporting evidence, amounting to something akin to denial of a fair trial.

Respondent / Magistrate position(s) (as recorded in the opinion)

The Magistrate recorded an opinion on May 22, 1935 that a speedy remedy was desirable to prevent imminent danger of a breach of the peace and was entitled to do so on perusal of the Police report.
The District Magistrate stated that the respondents were in possession of the kachary and had paid land revenue and cess, and that their possession had been rightly maintained by the Sub-divisional Officer; on that basis he rejected revision.
The Magistrate (as reflected in the report) described his intention as taking steps merely to prevent a breach of the peace and not to pursue the matter further beyond such steps; if disturbance recurred after two months, steps would be taken under S.107 CrPC.
In explanation the Magistrate asserted S.145 would be inappropriate because the possession of Chandramauli Prasad was undisputed (a position the High Court later questions in light of the record).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sheobalak Singh v. Kamaruddin Mandal (Full Bench)	The Full Bench explanation (Mullick, J.) that Section 144 CrPC is of general application and does not oust Magistrate's jurisdiction in bona fide disputes; but where S.107 or S.145 will meet the requirements, S.144 is not appropriate; habitual use of S.144 as a substitute is deplored; where materials show one party in possession and the other making a pretended claim, S.144 may be used if immediate prevention is desirable.	The Court relied on this authority to articulate limits on S.144: S.144 can be used in suitable cases but not as a habitual substitute for S.107/S.145; the authority was applied to evaluate appropriateness of S.144 here and to support intervention where S.144 had been misapplied without evidence.
Joint Agents, I.G.N & B.S.N Co. Ltd. v. Chandra Ketu Narain Singh	Cited as an example of the course followed previously when an order under S.144 was set aside by the Court.	The Court followed the course taken in that case (i.e., setting aside an order under S.144), and used it as precedent to justify setting aside the Magistrate's order in the present matter.
Saligram Singh v. Baijnath Singh	Cited as another instance where the Court set aside an order under S.144.	The Court relied on this case along with the Joint Agents case as authority for setting aside the impugned S.144 order in circumstances where the order was applied repeatedly and without proper inquiry or evidence.

Court's Reasoning and Analysis

The Court proceeded through a step-by-step analytical process, grounded in the factual record and prior authorities cited in the opinion:

Threshold question — use of S.144: The Court rejected any absolute proposition that an order under S.144 cannot be passed without taking evidence; similarly, it rejected a blanket rule that S.144 is always inappropriate in land disputes. Instead, the Court adopted the Full Bench exposition in Sheobalak Singh v. Kamaruddin Mandal (Mullick, J.), which recognizes that S.144 has a legitimate role where immediate prevention or speedy remedy is required, particularly where a party not in good faith makes a pretended claim.
Examination of the actual proceedings: The Court reviewed the Police report, the Magistrate's initial opinion dated May 22, 1935, the steps taken (notice issued to only one party), the confirmation of the order on June 7, and the District Magistrate's refusal to interfere. The Court observed that although some documents were placed before the Magistrate, no documents were formally marked or placed on the record in accordance with High Court rules.
Assessment of the three grounds of attack:
- First ground (imminent danger): The Court held this ground failed. The Magistrate recorded an opinion that speedy remedy was desirable to prevent imminent danger, and the Court accepted that the Magistrate was entitled to form that opinion on perusal of the Police report.
- Second ground (appropriateness of S.144 for possession disputes): The Court found that, on the record, the proceedings were treated as a case of disputed possession and that the Magistrate's order contained findings on possession. Following the principle in Sheobalak Singh, where possession is disputed S.144 is generally not the appropriate remedy; thus this ground succeeded.
- Third ground (lack of evidence and denial of fair trial): The Court concluded that the Magistrate's findings as to falsity of the petitioners' claim and possession "rest on no evidence" so far as the record shows. The Court characterized the orders against the petitioners as having "resulted in something akin to the denial of the right of fair trial" because the Magistrate repeatedly used S.144 without conducting a proper inquiry or recording available materials and gave no reason for issuing the notice against only one party.
Consideration of practice and habit: The Court remarked on the Magistrate's apparent habit of passing S.144 orders village after village (including an earlier order of April 11, 1935, at Beolagarh), without resolving the evidential question as to who was in rightful possession. The Court stressed that such habitual and unjustifiable substitution of S.144 for S.107/S.145 is deprecated.
Remedy adopted: Given the Magistrate's repeated application of S.144 without proper inquiry, and drawing on prior instances in which the High Court had set aside similar orders, the Court concluded that the appropriate course was to set aside the S.144 order challenged in this revision.

Holding and Implications

Holding:

Order set aside.

Implications and consequences articulated in the opinion:

The immediate, direct effect is that the S.144 order passed by the Sub-Divisional Magistrate (and confirmed) was set aside by this Court.
The Court made clear a broader supervisory principle: it will not tolerate the "habitual and unjustifiable use of S.144" as a substitute for Sections 107 and 145 CrPC. Where possession is genuinely disputed and the materials indicate a dispute of title/possession, S.144 is generally not the appropriate remedy and S.107 or S.145 should ordinarily be preferred.
The Court emphasized proper evidentiary practice: material placed before a Magistrate should be placed on the record and marked in accordance with applicable rules so that both parties and any court of revision may see the basis of decision.

Note: This summary is strictly confined to the statements, findings and authorities expressly appearing in the provided opinion. No information has been inferred or added beyond the text of the opinion.

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Musammat Jagrupa Kumari And Others First Party v. Babu Chotey Narain Singh Second Party Opposite Party.

1. This is an application to set aside an order passed under S. 144 of the Code of Criminal Procedure by the Sub-Divisional Magistrate of Benguserai against which a motion was presented before the District Magistrate at Monghyr and was rejected.

2. Among the grounds taken in revision are these that the Magistrate has not found and had not before him evidence to find that there was imminent danger making immediate prevention or speedy remedy necessary and, therefore he should not have proceeded under S. 144; secondly, that the Magistrate in a proceeding under S. 144 of the Code of Criminal Procedure should not have entered into the question of possession of immovable property—a matter for which proceedings under S. 145 should more appropriately have been taken, and, thirdly, that the Magistrate's findings are based on no evidence and an order should not have been passed to the prejudice of the petitioners without evidence to support it. The facts are somewhat unusual in this respect that neither the first party nor the second party claims to be entitled in their own right to possession of any property at all. There is an estate known as Neola or Neolagarh which was the property of Chaudhury Biswanath Singh and is now admittedly the property of his minor posthumous son Chandramauli Prasad. This son was until March 3, 1935, under the guardianship of his mother Krishnakanta Kumari who died on that date. Thereafter, the first party consisting of Jagrupa Kumari widow of the great grandfather of Chandramauli and her adherents on the one hand and the second party Chotey Narain Singh, father of Krishnakant Kumari, that is to say, maternal grandfather of Chandramauli and his adherents on the other hand are claiming to be administering and managing the estate on behalf of the minor. The proceeding was started on a Police report dated May 13, 1935, in which the Sub-Inspector after a statement of facts recommended that both the parties might be served with notices under S. 144 of the Code of Criminal Procedure not to create troubles and breach of the peace in connection with any affair relating to Neolagarh estate. The facts on which he based this recommendation were that in village Bhawanandpur belonging to the estate crops had been grown and harvested and stacked on the khalihan and there was likely to be a dispute leading to a breach of the peace as to who should remove the crops. The Magistrate on reading the Police report on May 22, 1935, recorded his opinion that speedy remedy was desirable to prevent an imminent danger of a breach of the peace. Instead, however, of issuing notices on both parties he issued a notice under S. 144 of the Code of Criminal Procedure to the members of the first party only, directing them to abstain from going near the places mentioned in the report or from handling the grains of the minor and not to commit any breach of the peace. The members of the first party filed a written statement praying that the order under S. 144 passed against them might be rescinded and similar order passed against the opposite party. Pleaders were heard and the Magistrate on June 7, 1935, confirmed the order as against the first party. The points which he set forth in his order as the points on which the case hinged are, firstly, whether the claim of Musammat Jagrupa Kumari to be the guardian of Chandramauli was bona fide and whether she was competent to be the guardian at all, and secondly possession.

3. The first point, it is contended, was more suitable for determination in a Civil Court. Nevertheless, there were facts in connection with the litigation that has already taken place indicating that Musammat Jagrupa Kumari and persons associated with her might have interests adverse to those of the minor, the agnates of the minor being of course the persons who would succeed to the property in the event of the minor's death.

4. On the second point the Magistrate held that Chotey Narain and the amlas of the late Kriahnakanta Kumari were in fact managing the estate and were “in possession of the grains and the estate on behalf of Chandramauli”. The order was passed without taking any evidence. I am informed at the hearing that some documents were placed before the Magistrate, but no document was marked as an exhibit or placed on the record. Wherever documents are used as evidence, the Court ought to place them on the record and mark them in accordance with the High Court's General Rules and Circular Orders, so that both sides may know and a Court of appeal or revision may see on what material the decision has proceeded. The District Magistrate in refusing to interfere on revision said:

“The respondents were in possession of the kachary and have paid land revenue and cess regarding the property … their possession has been rightly maintained by the Sub-divisional Officer and the motion is rejected.”

5. In admitting the petition in revision I asked for a report from the District Magistrate whether the order passed was intended as a mere temporary order pending the taking of proper proceedings under S. 145 of the Code of Criminal Procedure or S. 107, Criminal Procedure Code, or as a final order relieving the Magistrate of the duty of making a proper enquiry into the circumstances. In the report it is stated:

“It is not proposed to pursue the matter any further beyond taking steps to prevent a breach of the peace by the wrong-doer”;

6. That the order under S. 144 of the Code of Criminal Procedure was passed to prevent an imminent danger of a breach of the peace at Neola and Bhawanandpur and that

“if there is any recurrence or any sign of disturbance in those villages after two months, steps will undoubtedly be taken under S. 107 of the Code of Criminal Procedure and instructions have been issued to the Police accordingly.”

7. The bulk of the report embodies the view of the Magistrate or what may be called the findings of the Magistrate regarding the falsity of the claim set up on behalf of the petitioners, so far as the record shows, these findings rest on no evidence at all and it is the grievance of the petitioners that what may be called an ex parte determination of the whole case against them has been made without taking any evidence.

8. It cannot be laid down as a general proposition that an order under S. 144 cannot be passed without taking evidence nor can it be said that in every case of dispute regarding land S. 144 is inappropriate and proceedings ought to be had under S. 107 or S. 145, Criminal Procedure Code. In the Full Bench decision in Sheobalak Singh v. Kamaruddin Mandal (1), Mullick, J. explained the legal position thus: “Section 144 is of general application and contains nothing which ousts the Magistrate's jurisdiction in cases of bona fide disputes as to possession of land. But where S. 107, or S. 145 will meet the requirements of the case S. 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 S. 144 will generally be held 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 S. 144 if immediate prevention or speedy remedy is desirable… What the Court deprecates is the habitual and unjusti. Cable use of S. 144 as a substitute for ss. 107 and 145.” Mullick, J., said further: “Now, if it had been shown that upon the information before the Magistrate the conditions required by S. 144 had not been established so that the use of S. 144 instead of S. 107 or S. 145 was a mere abuse of 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.” The above and other decisions recognize the jurisdiction of a Magistrate to pass an order under S. 144 in a case where one party not in good faith is merely set ting up a pretence of claim and not a bona fide dispute, but it cannot be considered to be a good practice habitually to prejudge without evidence both the merits of the dispute and the question whether it is bona fide. Magistrates are entrusted with wide powers to enable them to discharge their important duty of providing for the prevention of a breach of the peace but such powers are not intended to be habitually used for the settling of disputed points which call for a decision on evidence. It is to be noted that the dispute now before me relating to crops grown in Bhawanandpur is not the first dispute between the parties that has been taken before the Magistrate. There was another in April referring to Beolagarh, the headquarters of the estate. In that case also the Magistrate passed an order under S. 144, Criminal Procedure Code, on April 11, 1935, against the present petitioners. The Magistrate is apparently prepared to pass similar orders in village after village without ever coming to grips with the evidence on the question which way the order should go, for he says in his explanation that should trouble recur in the same village after two months, steps would be taken under S. 107, Criminal Procedure Code. He apparently still does not consider that it would be his duty to take such action in the event of trouble occurring in any different village.

9. Now I return to the grounds on which the order of the Magistrate is attacked. The first ground fails; the Magistrate's order of May 22 records his opinion that speedy remedy was desirable to prevent an imminent danger of a breach of the peace and he was entitled to record such an opinion on a perusal of the Police report.

10. On the second ground the substance of the Magistrate's explanation is that S. 145 proceedings would have been inappropriate because the possession of Chandramauli Prasad is undisputed. The extracts I have cited from the orders of the S.D.O and District Magistrate, however, are clear, the proceedings were treated as a case of disputed possession and the findings are findings of possession. Therefore, in the words of Mullick, J. “S. 144 is not the appropriate remedy.”

11. On the third ground, the petitioners can fairly complain that (again in the words of Mullick, J.) the orders against them “bad resulted in something akin to the denial of the right of fair trial.” I have pointed out that in the original Police report the recommendation was to proceed under S. 144 issuing notices on both parties. No reason has been given by the Magistrate why he issued the notice against one party only. Had the order now complained against been the first order of the kind, it might have been sufficient to point out to the Magistrate that there was another procedure for dealing with such a matter which ordinarily speaking he should have preferred to follow. As, however, the Magistrate has applied S. 144 repeatedly and seems disposed to do so habitually, I think the proper course in this case is to leave no doubt that this Court will not tolerate what Mullick, J. has called “the habitual and unjustifiable use of S. 144, as a substitute for ss. 107 and 145.” Therefore although the order has been passed more than two months before today's date, I shall follow the course which was followed in Joint Agents, I.G.N & B.S.N Co. Ltd. v. Chandra Ketu Narain Singh (2), and Saligram Singh v. Baijnath Singh (3), and set aside the order.

12. Order set aside.

Musammat Jagrupa Kum... v. Babu Chotey Narain S...