Rajvi Roop Singh, J.C.
1. This is a reference made by the learned Sessions Judge of Tripura under Section 438, Cr.P.C. recommending that the order of the learned Magistrate dated 5.9.1962 is illegal, without Jurisdiction and has occasioned failure of Justice and, as such, should be set aside.
2. The facts giving rise to the order of the learned Magistrate are that on 27.7.62, the opposite parties named Bipra Charan Dey and Chinta Haran Dey representing themselves as first party flied an application before the S.D.M., Agartala, naming petitioners Amar Krishna Saha and 3 other persons Prafulla Kr. Ghosh, Rabindra Chandra Ghosh and Bepin Chandra Nama as second party stating that the second party had put a fencing to the north of a 'Gopat' along which the first party and other members of the public of the village used to pass with ploughs, cattle etc., from time immemorial. In the said petition the first party further stated that by reason of the second party putting the fencing the first party had been obstructed from going to the land to the west of the said 'Gopat' with plough and cattle for the purpose of ploughing and prayed for action being taken under Section 133, Cri.P.C. for removal of the obstruction. On this petition, the learned S.D.M. passed an order for inquiry and report by O.C., Kotwali P.S.
On 13.8.62 on receipt of the report from O.C,, Kotwali P.S., Shri K.P. Chakraborty, S.D.M. passed an order under Section 133, Cri.P.C. calling upon the second party to remove the obstruction and to show cause by 13.9.62 why the order should not the enforced. On 17.8.62, the first party filed another petition before the S.D.M., praying for the issue of orders under Section 142, Cri.P.C. on the ground that the first party was prevented by the obstruction from ploughing the land and sowing paddy thereon and that the time for sowing paddy was going to be over. On the basis of this application the learned S.D.M. passed an order that very date directing the Circle 0fficer shri D.K. Sen to make a local enquiry and report. On 5.9.62, after receipt of the report of the Circle Officer, the S.D.M. passed in order under Section 142, Cri.P.C. in the following terms:
Seen the report of Shri D.K. Sen, Circle Officer, it appears that there is a public road in the revenue records also and the C.O. has found that the road has been blocked by the opposite party. It has been reported to me that a piece of land will remain fallow if the first party does get access through the road. The learned Counsel for the first party argues that there is an imminent danger with regard to this obstruction as the First party has to go to his land for sowing purposes. I am also satisfied that immediate measures should be taken to prevent imminent danger. I therefore, order that an ad-Interim injunction under Section 142, Cri.P.C. be issued at once against the second party for removal of the obstruction as stated in the proceeding within 24 hours of the receipt of this order, in default of the 2nd party obeying such injunction the obstruction should be removed by force. To 15.10.62.
3. Thereafter on 14.9.62, the second party tiled an. application before the S.D.M. stating that no notice of the proceeding had been served on them and that the order for removal of the fencing particularly the portion of the order directing such removal by force by the police was illegal and Without jurisdiction. This application was rejected. On the rejection of the application, the second party tiled a revision petition to the Sessions Judge, Tripura, objecting to the legality of this order. The learned Sessions Judge after hearing both the parties has made this reference to this Court for setting aside the aforesaid order.
4. After hearing counsel on both sides, I am of opinion that the order of the Magistrate is illegal and cannot therefore be maintained. Section 142, Cri.P.C. reads as follows:
142, injunction pending inquiry - (1) If a Magistrate making an order under Section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious Kind to the public, he may, whether a jury is to be, or has been appointed or not, issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter. (2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury. (3) No suit shall the in respect of anything done in good faith by a Magistrate under this section.
5. First, it is quite clear from Sub-section (1) that an order under Section 142, Cri.P.C., can be passed only if the Magistrate considers that there was an imminent clinger or injury of a serious kind to the public. There is, however, nothing m the impugned order to show that the Magistrate considered that there was any imminent danger or Injury to the public. On the other hand, the order of the learned Magistrate shows that the consideration which weighed with him in passing the order was the report of the O.C. that a piece of land would remain fallow if the first party did not get access through the road and the argument of the learned lawyer for the first party that there was an imminent danger with regard to this obstruction as the first party has to go to his land for sowing purposes. Section 142 never contemplates I passing of an order of injunction for preventing I any danger or injury of this nature which is nothing but a danger or injury to private persons.
6. secondly, Sub-section (2) empowers the Magistrate to take steps for the implementation of the order of injunction issued under Section 142, Cri.P.C. on the failure of the person against whom the injunction had been issued to obey the same. But Before talking action under this sub-section, the Magistrate must see that an injunction of the Kind required by Sub-section (1) has been issued and the person against whom it leas been ordered, leas failed to obey that injunction. In the instant case, no notice of the proceeding drawn up under Section 133, Cri.P.C. by the learned Magistrate on 13.8.02 was given to the second party when the order dated 5.9.62 was passed. He proceeded to take action under Section 142(2), Cri.P.C. which he was only entitled to do provided the person against whom the injunction was ordered failed to obey that injunction. These illegalities caused a failure of justice to the second party. Under these circumstances, I have no option but to accept the reference and set aside the order of the Magistrate.
7. Hence the reference is accepted and the order of the Magistrate is hereby set aside.