J.N. Datta, J.C.
1. This is a criminal reference, made by the learned Sessions Judge, recommending that the order of the S. D. M., Sonamura dated. 10-12-1956,, passed under Section 144 Cr. P. Code, in Cr. Misc. Case No. 82 of 1956, ought to be set aside.
2. The dispute relates to Melaphar Bazar, and is in respect of the right to collect loll in the Bazar On 8-12-5R, Rai Mohan Shah (Party No. 1) applied to the S. D. M. for action under Section 144, against the second party consisting of Kala Meah and others. The learned S. D. M. asked the station Officer to enquire and report. The said Officer complied, and reported on 10-12-56 that there was imminent danger of a breach of peace. He also reported that in a civil suit between the parties, the Munsiff had granted a temporary injunction, against the second party, but the same had not till then been served on the second party, although the second party had gone up in appeal against that order to the District Judge. According to him, the second party was in possession and therefore both the parties should be restrained. On receipt of this report of Police, the S. D. M. at once passed an ex parte order restraining both the parties from entering the Bazar, or doing anything which might disturb the peace. He made the order for 30 days, or till the decision of the appeal by the District Judge, whichever might be earlier. It transpires that the appeal to the District Judge, later failed, and the order of temporary injunction against the defendants (second party) was maintained.
3. The order has thus spent itself, long ago, and it appears from the explanation of the learned S, D. M., that on previous occasions also, resort was had to Section 144.
4. A Magistrate gets jurisdiction under Section 144, if among other things required by the section, he is satisfied that 'an immediate prevention or speedy remedy is desirable' (Sub-section (1) of Section 144). Iri the present ease his order i;; silent on this point, and bad on that account. Again an ex parte order can be issued only 'in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the' order i? directed' (Sub-section (2) of Section 144).
But it does not appear from the record of the Magistrate that such was the case. Further it was necessary that the Magistrate should have after passing this ex parte order, given the parties an opportunity of being heard, and then either confirmed, modified or vacated the said order. But this was not done, showing that the Magistrate is neither conversant with the procedure and law on the subject, nor did he care to study them, and such lack of ap-' plication has to be strongly disapproved.
5. The order of the learned S. D. M. is objectionable also from the point of view, that he should have given effect to the order of the Civil Court, and not debarred the party in whose favour temporary injunction was granted., It is true that the Magistrate is responsible for the maintenance of the peace but it is well settled that orders of the Civil Courts should not be interfered with and it is the duty of the Criminal Courts to maintain the right declared by them, except most probably in cases where the imminent danger cannot be averted in any other way. This was at least not a ca'se of that type, and the civil court could have also compelled the party restrained, to respect its order by taking action under Order 39 Rule 2(3).
6. It transpired accidentally in the course of arguments, on a question being put by this Court, that the District Magistrate had modified the said order of the Magistrate, and on the record of the proceedings before the D. M., having been obtained, it came to light that in Cr. Motion 26 of 1956 the learned D. M., by his order dated 18.1-57 had modified the order of the S. D. M. and directed the S. D. M. to carry out the order of the Munsiff.
That is the D. M. maintained the order under Section 144 only to the extent of restraining Kala Mea and others and set it aside as far as the other party was concerned. It has to be noticed that this order of the D. M. was passed when the order of the Magistrate had already spent itself, and after the learned Sessions Judge had passed the order referring the case to this Court that is, on 4-1-57. That wilfhowever not make any difference as the D. M. was fully competent to do so, under Section 144(4), and credit must be given to him that he had stayed the order of the Magistrate, so far as it conflicted with the order of the Munsiff, by his order dated 17-12-56, when admitting tile motion. But it appears that the same was not brought to the notice of the Sessions Judge. (7) Here again, note must be taken of the delay that occurred in the Sessions Court, in forwarding this reference to this Court. As already stated, the order of reference was passed by the learned Sessions Judge on, 4-1-57, and the S. D. M. was given 14 daj;s time to send in his explanation. But the S. D. M.'s explanation is dated 22-4-57 and he has apologised in the very beginning of it, for the delay. Delay in such matters cannot be too strongly disapproved, and 'the Sessions Court ought to be also vigilant in the matter.
When the reference was to be forwarded to this Court, on receipt of the explanation of the Magistrate, commonsense dictates that a date should be fixed in the case awaiting the explanation and the case should be put up before the Sessions Judge, on that date for further steps or orders as may be necessary. This will avoid such delays, and also compel the ministerial officers of the Court to take necessary steps in good time.
In the present case, the clerk concerned, sat over till 22-1-57 and did not send the record and copy of the order to the S. D. M. till 31-1-57, when the matter came to the notice of the S. J. in connection with another case. I am glad to note, that the Sessions Judge took action against the clerk concerned.
8. Now it will be clear from what has been already stated, that tile very foundation which gives the Magistrate jurisdiction to act under Section 144, was wanting in this case, but in view of the fact that the order was correctly modified by the learned D. M. I and it also spent itself long ago, I do not think that it is necessary to interfere with it, in the exercise of ithe revisional powers of this Court. No decision ,Was given, as to the rights of the parties, and no serious prejudice was caused to any one.
The order of the learned D. M. was tried to be challenged before me on the ground that it was without jurisdiction, and reliance was placed upon the case reported in Dewan Singh v. Deo Narain : AIR1951Pat253 . But in that case, facts were different and the A. D. M. had made the order absolute against the party, against whom the S. D. M. had vacated the order and the question of right to crops was also involved. Again no complaint was made, against that order of the D. M., and, no revision petition was preferred against it, by any-of the parties.
9. I have already said that Section 144 was resorted to previously also in the dispute over this Bazar, which it appears has been raging for some time past. Manifestly Section 144 is not intended for such a purpose, and the proper course in such disputes is to have-recourse to Section 145 or Section 147 as the circumstances pray demand.
10. With the above remarks, this reference is rejected.