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Basu Choudhary and ors. Vs. State of Bihar - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBasu Choudhary and ors.
RespondentState of Bihar
Prior history
R.S. Bindra, J.C.
1. This reference Under Section 438, Criminal Procedure Code by the Additional Sessions Judge, Manipur, relates to an intermediary order dated 19-7-1968 passed by the District Magistrate, Manipur, at the instance of Kakhangai Kabui and 14 others against whom an order Under Section 144 (1), Criminal Procedure Code had been made by the Sub-divisional Magistrate, Imphal West, on a petition instituted by Smt. Apambi Kabuini.
2. Smt. Apambi Kabuini had complained that the members
Excerpt:
.....and appellate..........additional sessions judge, manipur, relates to an intermediary order dated 19-7-1968 passed by the district magistrate, manipur, at the instance of kakhangai kabui and 14 others against whom an order under section 144 (1), criminal procedure code had been made by the sub-divisional magistrate, imphal west, on a petition instituted by smt. apambi kabuini.2. smt. apambi kabuini had complained that the members of the other party were threatening interference in her established possession over a piece of land in village kakhulong and so she prayed that they be restrained from embarking upon such a course. the sub-divisional magistrate passed an order under section 144(1), criminal procedure code on 12th july 1968 in the manner prayed for. aggrieved by that order kakhangai kabui and others.....
Judgment:

R.S. Bindra, J.C.

1. This reference Under Section 438, Criminal Procedure Code by the Additional Sessions Judge, Manipur, relates to an intermediary order dated 19-7-1968 passed by the District Magistrate, Manipur, at the instance of Kakhangai Kabui and 14 others against whom an order Under Section 144 (1), Criminal Procedure Code had been made by the Sub-divisional Magistrate, Imphal West, on a petition instituted by Smt. Apambi Kabuini.

2. Smt. Apambi Kabuini had complained that the members of the other party were threatening interference in her established possession over a piece of land in village Kakhulong and so she prayed that they be restrained from embarking upon such a course. The Sub-divisional Magistrate passed an order Under Section 144(1), Criminal Procedure Code on 12th July 1968 in the manner prayed for. Aggrieved by that order Kakhangai Kabui and others moved an application on 19-7-1968 before the District Magistrate, Manipur, under Sub-section (4) of Section 144, Criminal Procedure Code for rescission thereof. On the same date the district Magistrate passed the following order after hearing only the petitioners before him:

Presented to-day the 19th July 1968. Heard the petitioner. The operation of the order of the .learned Magistrate dated 12-7-1968 is stayed. Neither party will enter the land in dispute during the pendency of these proceedings. The records be called and a notice be served on the O. P. to come up on 29-7-68 at 2-30 P. M. A copy of this order be served on the O. P, and O/C. Imphal Police Station.

3. Smt. Apambi Kabuini filed a revision petition on 22-7-1968 in the Court of the Sessions Judge challenging the validity of that order. That revision petition was heard by Shri P. N. Roy, Additional Sessions Judge. In the opinion of Shri Roy the order made by the District Magistrate was in excess of the authority vested in him Under Section 144 (4), Criminal Procedure Code and so he recommended that the order should be quashed.

4. For proper appreciation of the point involved it is appropriate that Sub-section (4) of Section 144 should be reproduced. It runs as under:

(4) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this Section by himself or any Magistrate subordinate to him, or by his predecessor in office.

A plain reading of the Sub-section would indicate that the District Magistrate could have either rescinded or altered the order made by the Sub-divisional Magistrate and that he had no authority to substitute that order by one of his own. Further, Sub-section (4) does not contemplate any interlocutory orders pending the disposal of an application moved by the aggrieved party under that Sub-section. The impugned order obviously is in the nature of an interlocutory order pending the disposal of application made by Kakhangai Kabui and 14 others before the District Magistrate, Manipur, on 19th July, 1968. Since the latter had no jurisdiction to do so, it can be stated without demur that the order dated 19th July, 1968, is illegal and so must be quashed on that short legal ground.

5. In the second place, Sub-section (4) contemplates only rescission or alteration of an order passed by the subordinate Magistrate. The impugned order, however, cannot be said to have either rescinded or altered the order made by the Sub-divisional Magistrate on 12th July, 1968. It is virtually a substitution for the latter order inasmuch as the District Magistrate directed Smt. Apambi Kabuini as well from entering upon the land in dispute. I may recall that the Sub-divisional Magistrate had only forbidden the other party only from entering upon that land. The District Magistrate clearly transgressed the limits of his authority, while exercising his power given by Sub-section (4), in forbidding Apambi Kabuini from entering upon the land.

6. During the course of arguments before the Additional Sessions Judge it: was represented on behalf of the respondents herein that the- District Magistrate could have stayed the operation of the order made by the Sub-divisional Magistrate in exercise of his revisional or appellate powers and that as such no fault could be found with the impugned order. In this Court it is canvassed by Shri Y. Imo Singh, on behalf of the respondents, that the District Magistrate had passed the impugned order in exercise of the powers Under Section 561-A, Criminal Procedure Code. Neither the submission made before the learned Additional Sessions Judge nor in this Court can stand a moment's serious scrutiny.

The application by the respondents was made before the District Magistrate specifically under Sub-section (4) of Section 144, Criminal Procedure Code. Therefore, the District Magistrate could have neither stayed the operation of the subordinate Magistrate's order in his capacity as an appellate Court or a revising authority. The power given by Sub-section (4) clearly falls within the category of a special power and it has nothing in common with the power of suspension or stay exercised by the revisional and appellate Courts. The impugned order does not indicate ex facie that it was passed Under Section 561-A, Criminal Procedure Code. Therefore, it is not possible to examine and consider the validity or otherwise of the order on the footing that it had been made under that provision of the law. If the District Magistrate had taken recourse to Section 561-A he must have made it clear in the body of the order itself. Therefore, it is not possible to sustain the impugned order on any basis.

I regret that the District Magistrate should have passed an ex parte order of far-reaching consequences without seriously examining the extent of the authority vesting in him under Sub-section (4) of Section 144. It will be noticed that though that order is illegal and will be quashed, but the mischief perpetrated by it cannot be undone. It would be appreciated if the Magistrates were to exercise their judicial functions with that coolness and calmness which is expected of them by the Legislature and the community at large.

For the reasons stated above, I accept the recommendation made by the Additional Sessions Judge and quash the order dated 19th July, 1968.


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