This was an application under section 297 of the Criminal Procedure Code to set aside an order of the Deputy Magistrate of Baghat in the District of Jessore, instituting a proceeding under section 530 of the Criminal Procedure Code.
In 1878 the petitioner, Chunder Madhub Ghose, at a sale in ??? of a decree, purchased the right and interest of Messrs ??? and Lightfoot in a Mehal called Betiboonia, situated in the sub-division of Bagat. The sale was duly confirmed, and the ??? put in possession, on the 23rd August 1878. A cutcherry was erected, and endeavours were made to realize the rents from the ryots.
On the 29th January 1879, one Babooram Samadar presented a petition to the Deputy Magistrate, alleging that his masters had, in 1281, obtained an ousat talookdaree pottah of the mehal from Messrs Morel and Lightfoot, and were in possession and in receipt of rent from the tenants. The petition further suggested that the servants of Chunder Madhub Ghose had ill-treated the ryots, and that, in the event of their being opposed, there was a probability of a breach of the peace occurring.
The police were, thereupon, directed to make an enquiry, and on the 3rd February they reported that, although no breach of the peace had taken place, it was possible such a breach might happen, and recommended both parties to be bound down to keep the peace.
Accordingly, on the 17th March, proceedings were instituted under section 491 of the Criminal Procedure Code.
But the Deputy Magistrate, after recording certain evidence in these proceedings, on the same day, made an order calling upon both parties under section 530 to appear on the 2nd April, and produce their evidence before him in a proceeding which he thereupon instituted under that section. This proceeding set out that “it appears from the report of the police that both parties have commenced a quarrel with regard to kismut Betiboonia, and that there is a likelihood of a breach of the peace in the future.”
The first proceedings, instituted under section 491, resulted, on the 22nd March, in five of the servants of the present petitioner being bound down to keep the peace, but on appeal, the Magistrate of Jessore set the order of the Deputy Magistrate aside, on the ground that the evidence did not prove the likelihood of a breach of the peace.
An application was then made on behalf of Chunder Madhub Ghose to have the proceedings under section 530 transferred to another Magistrate; but this was refused by the Magistrate. Whereupon the petitioner applied to the High Court to have the order directing the proceedings under section 530 set aside on the ground that the materials on which it was based did ??? disclose that either party had done anything, or was about ??? do anything likely to cause a breach of the peace. A rule to show cause was granted, and now came on for hearing.
Baboo Kashi Kant Sen, shewed cause.
M. Ghose, Baboo Umbica Churn Bose, and Baboo Doorga Mohun Doss, contra.
Baboo Kashi Kant Sen.—Under the new Code of Criminal Procedure, a Magistrate may record a proceeding on a Police Report or any other information, and is not bound to take evidence, although in a recognizance case he cannot bind any one without recording evidence. The two cases are therefore quite distinct. It does not follow, therefore, that because the Magistrate of the district has held that the evidence recorded by the Deputy Magistrate was insufficient to support the order for recognizance, that evidence is insufficient to satisfy the Deputy Magistrate for the purpose prescribed in section 530.
[White, J.:— You mean that an order for recognizance cannot be made except upon evidence, but under the explanation to section 530, a Magistrate may act upon any private report and need not act upon any evidence; and that if the Magistrate says he is satisfied that a breach of the peace is likely, we cannot go behind it.]
Yes; it has been held that a Magistrate, in a case under section 530, is not bound to take evidence In the matter of J.D Sutherland, 9 B.L.R, 229. In this case the Deputy Magistrate has recorded a proceeding, and that is a sufficient compliance with the requirements of the section. Even if this Court has the power of going behind the proceeding, I submit that the Police Report and the statements of the parties are sufficient to show that there might be a breach of the peace at any moment.
Ghose (in support of the rule)— A Magistrate has no jurisdiction to interfere in cases of this kind, unless he has acquired it by recording a proceeding upon sufficient materials, stating that he is satisfied that a breach of the peace is imminent.
[White, J.:— He has recorded a proceeding and he says ??? is satisfied. How can we go behind that?]
He must be satisfied upon sufficient and proper grounds, and the grounds ought to appear on the face of the proceeding. Here the proceeding simply states that “it appears from the evidence in the recognizance case, the Police Report and the statements of the parties, that a breach of the peace is likely,” and I submit that such a proceeding is bad, inasmuch as it does not contain any grounds.
[White, J.:— The Magistrate refers to the record in the recognizance case, and I think we must take that record as substantially forming a part of this proceeding.]
Even then I contend that the materials and grounds referred to are insufficient.
[White, J.:— How can we go into that?]
The object of recording a proceeding containing the Magistrate's grounds is simply to enable this Court, as a Court of Revision, to see that the Magistrate has not arbitrarily interfered in disputes which ought ordinarily to be settled by the Civil Courts—Per Garth, C.J, in Sheikh Munglo v. Durganarain Nag, 25 W.R, Cr. Rul., 76. I do not go the length of saying that the materials must be based upon evidence on oath, but they must be of such a diameter as to lead reasonably to the belief that unless the Magistrate mean to interfere a breach of the peace will be inevitable. This was the view taken by Mr. Justice Phear in the matter of Kishoree Mohun Roy, 19 W.R, Cr. Rul., 10, and there his Lordship explains what he meant to say in an earlier decision which was dissented from by Sir Richard Couch, in the case cited by the other side.
[White, J.:— Are not the admitted facts of the case, viz., that you are trying to realize rents from the ryots; that you have erected a cutcherry for that purpose; and that the other ??? have set up an under-tenure which you dispute, sufficient to ??? to the inference that a breach of the peace is likely? Cannot ??? Magistrate, knowing the character and tendencies of the people say that such facts satisfy him, that a dispute likely to induce a breach of the peace exists?]
I submit not. Otherwise a Magistrate may interfere in the case of every dispute, for of all disputes regarding land, a Magistrate may say in one sense that a breach of the peace is possible. In the present case the ryots are paying us willingly, and we are holding our cutcherry in the house of a ryot with his consent. It must be shown that we have done some act or acts which are calculated to lead to a certain breach of the peace. I contend that, although the Magistrate may be satisfied upon statements or information not on oath, those statements must be similar in character and effect as would be necessary in order to bind down a person under section 491, because the words there are also “any person likely to commit a breach of the peace.”
[White, J.:— That section has reference to “a person,” but section 530 refers to “a dispute.”]
Yes, but the words are “all parties concerned in such dispute,” that is, a dispute likely to lead to a breach of the peace. Therefore, what must be shown as regards “a person” in a case under section 491, must also be shown as regards at parties concerned in a dispute,” in a case under section 530. Now it has been held in two cases in 22 W.R, 79, that the accused must have done or must have been contemplating some specific act before he could be bound down under section 491. Those decisions, I submit, are applicable to the present case, the only difference between the two classes of cases being, that in the one evidence must be recorded on oath, and in the other it need not be so. If, then, the materials are in the present case insufficient, the Magistrate has acted without jurisdiction, and his proceeding ought to be quashed.
The following judgments were delivered by the Court (1):—
Morris, J.:— The petitioner, Chunder Madhub Ghose, asks this Court to set aside a proceeding of the Deputy Magistrate of Baghat, dated March 17th, 1879, which he has recorded under the provisions of section 530 of the Criminal Procedure Code. In this proceeding he records the fact that a dispute exists, which is likely to induce a breach of the peace between Juggut Chunder Sen and one Chunder Madhub Ghose relative to certain land called Betiboonia, and he calls upon them to give in, within a specified time, a written statement of their respective claims as respects the fact of actual possession of the land in dispute. The petitioner seeks relief on the ground that this proceeding is uncalled for, and without jurisdiction.
The circumstances of the case are as follows:—On the 4th March 1874 a certain property of the Messrs Morell, named Mehal Betiboonia, was sold in execution of a decree of the Civil Court, and purchased by Chunder Madhub Ghose. On the 23rd August 1878, Chunder Madhub Ghose was put in possession by the Court. On the 21st January 1879 one Babooram Samadar, a servant of Juggut Chunder Sen, presented a petition to the Deputy Magistrate of Baghat, representing that his master obtained Mehal Betiboonia as an ousut talook tenure under a lease granted to him by the Messrs Morell in 1871, and had been in possession and in the receipt of rent from the ryots since that date; that Chunder Madhub Ghose purchased the proprietary rights of the Messrs Morell in this property, at an execution sale on Phalgoon 21st, 1284, that he had sent servants and lattyals who were seizing the ryots and committing various kinds of oppression upon them, that if on the part of his master, opposition was offered for the protection of the ryots, an affray would probably take place, and he, therefore, prayed that securities and recognizances in heavy sums might be taken from certain servants of Chunder Madhub Ghose, whom he named.
Upon this the Deputy Magistrate called for a report from the Police, and on the receipt of their report he, on February 13th, 1879, issued summonses on the persons named, calling on them to show cause why they should not be bound down in various specified sums to keep the peace. On their showing cause the Deputy Magistrate, on the 17th March 1879, recorded the proceeding under section 530, which is now objected to, and on the 22nd March, he bound the persons down in heavy recognizances to keep the peace. The persons, so bound down, appealed to the District Magistrate, and he set aside the order on the ground that the evidence upon which the Deputy Magistrate had adjudicated did not prove, that these persons were likely to commit a bread of the peace. As the Deputy Magistrate did not on this stay further proceedings under section 530, and the District Magistrate had no authority to interfere with his action under that section, the petitioner applies to this Court to restrain him by cancelling the initial proceeding of March 19th. The petitioner contends that there are no grounds for that proceeding, as the information or evidence on which it is based is precisely the same as that upon which his servants were bound down to keep the peace, and in respect to which the Magistrate has held that it does not suffice to prove that they were likely to commit a breach of the peace. We observe, however, that what may satisfy Magistrate that a dispute likely to induce a breach of the peace exists concerning any land which justifies his taking action, under section 530, is very different from the evidence necessary to warrant an order under section 491, which bears upon the conduct of the particular person affected by it. It is necessary, therefore, to see what are the grounds stated in the proceeding of March 17th which have satisfied the Deputy Magistrate that dispute likely to induce a breach of the peace existed concerning Mehal Betiboonia. Unfortunately, in this proceeding, the Deputy Magistrate has not recorded any specific grounds. He refers to the statements of the parties, the evidence of the witnesses and the police report, and states that they satisfy him that a dispute likely to induce a breach of the peace exists concerning this property. We have had these statements, & c, read to us, and certainly no hostile act or even hostile intention on the part of either side can be gathered from them. The District Magistrate was perfectly right in holding that upon such evidence no person could be bound down to keep the peace. What these statements, evidence, and report amount to, is this,—that each party lays claim to the direct receipt of rent from the ryots; that since his purchase Madhub Chunder Ghose has made use of one of the houses of his tenants which the tenant has given him for the purpose of a cutcherry; that he is inducing the ryots to pay their rent to him; and that while the first kist of the year has been paid to Juggut Chunder the second has been paid to Chunder Madhub Ghose.
There can be no question that at present the attitude of both sides is peaceful, and that each is acting within his own supposed right; no attempt at compulsion is exercised on the ryots in the ??? of the payment of the rent, each party being content ??? take such rent as the tenants choose to pay him. Two questions here arise: 1st, whether in such a state of things as this, there are any proper grounds which would justify a Magistrate recording a proceeding, and taking action under section 530; and, 2nd, whether he is justified in recording such a proceeding unless there is an immediate prospect of a breach of the peace arising out of the dispute in question. We think that the rulings of this Court go to show that both these questions must be answered in the negative. The case of Raja Run Bahadoor v. Ranee Tihosub Koer, 22 W.R, 79, was somewhat similar to the present, though there the disputes had assumed a far graver complexion. In it the principle was affirmed that there must be some specific hostile act on the part of one of the parties going to show that a breach of the peace is probable. A Criminal Court would not interfere when the acts committed were honest acts done in assertion of a supposed claim of right, and which did not, in themselves, indicate an intention of afterwards proceeding to criminal conduct, in the shape of a breach of the peace. Again a Full Bench of this Court, In re Sheikh Mungle v. Doorga Narain Nag, 25 W.R, 74, distinctly held that, however serious the dispute may be between the claimants, and however desirable the Magistrate may consider it to settle that dispute, he has no right to interfere unless a breach of the peace is imminent. Here not only is there no act on the part of either side from which any hostile intention may be drawn, but the Deputy Magistrate has expressly recorded that it is to guard against a breach of the peace “in the future” that he takes action under section 530; clearly no immediate probability of a breach of the peace is contemplated by him. In both these points of view, therefore, we are of opinion that the Deputy Magistrate's proceeding is bad, as based upon what are in fact no grounds at all, and therefore, made without jurisdiction. Accordingly we set it aside, and direct the Deputy Magistrate to stay further action under it.
White, J.:— I concur.