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Siddegowda and anr. Vs. Kullegowda - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 161 of 1950-51
Judge
Reported inAIR1951Kant17; AIR1951Mys17
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 144, 144(2) and 149
AppellantSiddegowda and anr.
RespondentKullegowda
Appellant AdvocateU. Subramanyam, Adv.
Respondent AdvocateV. Krishnamurthy, Adv.
DispositionPetition dismissed
Excerpt:
.....first wrote 'the' and then charged it to 'his' and as he found it expedient to make an order ex parte he ordered that, the respondents (petitioners in this court) do refrain from interfering with p. he failed to see that an order under section 144 was of an extraordinary character and could only be passed in serious and urgent cases where the magistrate was satisfied that there were sufficient grounds to proceed under that section and immediate prevention or speedy remedy was desirable. he failed also to see that in his order he had to state the material facts of the case and that he could direct the opposite party to abstain from 'a certain act' only if he considered that such direction was likely to prevent obstruction or annoyance to any person lawfully employed or danger to human..........and calves, vessels, boxes etc., was annexed. this application was presented on 8-5-1950.2. the learned magistrate formally examined the respondent on oath and immediately ordered on the margin of the application itself that the petitioners 'do refrain from interfering with p. w. 1 and causing any obstruction whatsoever to the respondent (the petitioner before him), from entering the schedule house or removing the articles therein.'he also directed the order to be sent to the police. in his order he said he was satisfied upon reading the petition and hearing the respondent and examining him on oath that the petitioners without any justification whatsoever were obstructing the respondent from removing his articles--he first wrote 'the' and then charged it to 'his' and as he found it.....
Judgment:
ORDER

Vasudevamurthy, J.

1. The respondent Kullegowda filed an application under Section 144, Criminal P. C., in the Court of the Special First Class Magistrate, Nanjangud, alleging that he had leased some lands of his in Hunasanalu village to petitioner 2, that he wanted to sell away his lands and house in that village and go away to another village, that petitioner 2 and his eldest brother, petitioner 1, were pressing him not to sell them but to allow them to continue as lessees, that he had refused that he had removed his own family members to the neighbouring village and came back on 7-5 50 to take away his 4 carts and other movables from his house and that the petitioners obstructed him and threatened him with sickles and other weapons and did not allow him to enter his house, that he approached the police of Nanjangud and they asked him to get an order of the Court before they could help and that accordingly the Court should grant an ex parte order in his favour directing the petitioners not to interfere with his opening the lock of the house and removing the movables contained in it. To the application a schedule of the house and a long parti of as many as 33 items of movables including buffaloes, cows and calves, vessels, boxes etc., was annexed. This application was presented on 8-5-1950.

2. The learned Magistrate formally examined the respondent on oath and immediately ordered on the margin of the application itself that the petitioners

'do refrain from interfering with P. W. 1 and causing any obstruction whatsoever to the respondent (the petitioner before him), from entering the schedule house or removing the articles therein.'

He also directed the order to be sent to the police. In his order he said he was satisfied upon reading the petition and hearing the respondent and examining him on oath that the petitioners without any justification whatsoever were obstructing the respondent from removing his articles--he first wrote 'the' and then charged it to 'his' and as he found it expedient to make an order ex parte he ordered that,

'the respondents (petitioners in this Court) do refrain from interfering with P. W. 1 and causing any obstruction whatsoever to the petitioner (respondent here) from entering the schedule house or removing the articles therein.'

He then added:

'and direct the respondents to appear in person and show cause why this order should not be made absolute'

and struck off this last direction and added a postscript to his order: 'Send the order to the police for service and enforcing it.' The learned Magistrate left the station on transfer and on 12-5-1950 the petitioners filed an objection application I. A. no. I through counsel before his successor in office. In that application they alleged that the respondent had never lived in Hunasalu village but was merely keeping some woman there, that he had filed a false application before the police and had not proceeded with it but had filed a different kind of application in the Magistrate's Court, managed to obtain an ex parte order and on its strength had removed wrongfully a pair of oxen, a pair of buffaloes, two buffalo calves, a cow and two calves belonging to themselves. They therefore prayed that the ex parte order may be withdrawn, an enquiry held and their articles returned to them. That the respondent removed them appears to be evidenced by a mahazar dated 9-5-1950. That learned Magistrate proceeded to dispose of this objection application in a very leisurely way. He ordered notice of this application and on 24-5-1950 the respondent's counsel who had managed to secure the earlier ex parte order on behalf of his client refused to appear for his client saying that his engagement had ceased and notice was ordered to the respondent by 1-6-1950. The respondent tack time to engage another counsel and to file objections to I. A. I, and after he filed the objections the learned Magistrate adjourned the case four times to hear arguments on I. A. I and ultimately on 3-7-1950 threw out that application on the ground that the matter was one to be properly decided by a civil Court after taking evidence and that as the order itself would expire by 8-7-1950 i. e. about 6 days later, he did not feel any necessity to interfere with be original order or to set it aside. Against that order this revision petition has been filed.

3. I think that the learned Magistrate who originally passed the order was entirely in error in doing so. He does not appear to have even read Section 144 carefully before so doing. He assumed that the respondent was the owner of the moveable and immovable properties as alleged by him, that he was fully at liberty to remove them and by an ex parte order placed it beyond the powers of the petitioners to exercise or defend their own legal rights if any to their own properties and gave permission in the nature of carte blanche to the respondent to remove the articles whether they were his own or of others. He failed to see that an order under Section 144 was of an extraordinary character and could only be passed in serious and urgent cases where the Magistrate was satisfied that there were sufficient grounds to proceed under that section and immediate prevention or speedy remedy was desirable. He failed also to see that in his order he had to state the material facts of the case and that he could direct the opposite party to abstain from 'a certain act' only if he considered that such direction was likely to prevent obstruction or annoyance to any person lawfully employed or danger to human life, or safety or a disturbance of public tranquillity or a riot or an affray. Without even calling for a police report and in the absence of even an allegation in the petition much less prima facie evidence, either as regards the urgency of the matter or its necessity to avoid a breach of the peace or the title and rights of the respondent, he chose to issue a drastic order which was calculated to lend the entire weight of the authority of the Court and the might of the police to the respondent to do what he liked without any interference whatsoever.

4. In Vaithilinga Mudaliar v. Ramanuja Mudaliar, : AIR1929Mad845 it has been held that where a person simply wants to enforce his right to possession of property the criminal Courts ought not to lend him their and under Section 144. Criminal P. C. In Kishori Jha v. Anand Kishore Jha, A.I.R. (17) 1930 Pat. 162: (31 Cr. L. J. 1005) it has been pointed out that ordinarily unless the facts are on the face of them quite clear, a proceeding should be drawn up under Section 145 for the purpose of investigating the question of actual possession of the property.

5. In Piamullah v. Emperor, 38 Cal. 876 : (13 Cr. L. J. 126), the petitioner excavated a tank on his own land adjoining the house of the opposite party. The latter objected to the excavation as being likely to endanger his house. No likelihood of a breach of the peace appeared from the police report or the written statements of the parties. Nevertheless the Magistrate made an order under Section 144, Criminal P. C., without enquiry or recording any urgency. The Calcutta High Court held that the order was illegal and that Section 114 was not applicable without enquiry or recording any urgency. Their Lordships point out at p. 879 that the order was entirely misconceived, and that Section 144 is ordinarily to be used only in cases of urgency and not allowed to take the place of more appropriate remedies like an injunction in a civil suit which the opposite party could have obtained to prevent the defendant from continuing the excavation of the tank.

6. In Puransingh v. Mt. Ramjharikoer, A. I. R. (22) 1935 Pat. 224 : (36 Cr. L. J. 656) it has been pointed out that where there is a dispute regarding possession of immovable property 'a proceeding under Section 144, Criminal P. C., is a poor substitute for a proceeding under Section 145 which settles once (or all, so far as Criminal Courts are concerned, the question of possession with regard to a particular piece of immovable property.'

7. In my opinion the proper use to be made of Section 144 is to meet a temporary urgency or keep things in status quo and not to pass an order which has practically the effect of a mandatory injunction in favour of one of two opposing parties whereby he is able to deprive the other completely of his ordinary legal rights and remedies and that too finally for all practical purposes as in this case. Before proceeding under Section 144 (2) the Magistrate must be satisfies that there are causes like danger to human life or a disturbance of public tranquillity or a riot or an affray and which call for immediate prevention or speedy remedy. Vide Surendra Nath v. Gostha Behari : AIR1934Cal139 .

8. Mr. V. Krishnamurthy, the learned counsel for respondent, has referred to Ramanuja Jeeyarswamiv. Ramanuja Jeeyar 3 Mad 354, and argued that an order of the kind passed in this case restraining a person from interfering with another's exercise of right to possession of lands and buildings is permissible. In that case the Magistrate as well as the High Court were satisfied that there was danger of a serious riot or breach of the peace. The apprehension was based on police reports and all that the order required was that the petitioner should not interfere with a temple and its property, the management of which was admittedly not in his hands but with the opposite party from a long time. That case is, therefore, no guide for taking action under Section 144 on a self-serving one sided version of a petition whose right to possession was yet to be established and there was not even an allegation of urgency or danger to public peace calling for immediate action.

9. What happened subsequently in the case is also surprising. The petitioners applied on 12-5-1950, i. e., within 4 days of the original ex parte order for its being withdrawn and their objections considered. That application was allowed to drift leisurely and ultimately the petitioners were denied relief on the ground that the period of the order was about to expire. This order too was also not proper or conducive to doing justice or in accordance with law, and particularly so as the period had not yet run out under Section 144 (5) and the Magistrate could have rescinded or altered any order made earlier under that section by himself or by his predecessor-in-office.

10. In this revision petition it is contended for the respondent that the period of 60 days during which such an order under Section 144 will be in force has expired, that the order has spent itself out and that the High Court cannot now interfere with that order. This cannot be 'accepted. In In re Ardeshir Phiroz Shaid, A. I. R. (27) 1940 Bom. 42 : (41 Cr. L. J. 319) the Chief Presidency Magistrate made an order under Section 144, Criminal P. C., directed against the petitioner who was editor of a newspaper to the effect that he should not publish any news or comments on a riot which had taken place in Bombay some time earlier. The Magistrate himself cancelled the order later on. In a revision petition filed against the earlier order, it was contended that the High Court could not pass any order as the original order had ceased to be in force. Beaumont C. J., and Sen J., held that the High Court had power to set aside an order which ought never to have been made, although before that action can be taken the order may have ceased to be in operation.

11. Mr. V. Krishnamurthy relies on a decision in Abdul Samad v. Emperor, A. I. R. (21) 1934 Oudh 87 : (35 Cr. L. J. 472) where it has been held that when an order under s 144, Criminal P. C., had ceased to be in force by efflux of time, the High Court should not interfere with it in revision and that if the applicants felt aggrieved against that order they had their remedy in the civil Court by the filing of a declaratory suit. In that case it will be noticed that the order itself was found to be a proper one passed in an emergency, on a police report and therefore not liable to be set aside by the High Court at all. The opinion of the Court that the High Court should not interfere in revision after the period of 60 days had expired did not really arise or was necessary to be considered in that case and as merely an obiter.

12. In Mysore also it has been held in 31 Mys. C. C. R. 212: (4 Mys. L. J. 125) that though Section 144 is of a general application and contains nothing which ousts the Magistrate's jurisdiction in case of bona fide disputes as to possession, yet that section is not to be applied and is not a proper remedy where Section 145 would meet the requirements of the case and that an order passed under Section 144 in the absence of any immediate danger to be averted would be without jurisdiction and could be set aside even though more than two months have elapsed and the order has ceased to be in force by lapse of time so that the rights of the parties may not be affected by such an improper order. This would be particularly so in a case where even before the expiry of the period the order has been questioned and had come up for adjudication as in the present case. It has been pointed out in 7 Mys. L. J. 398 that even a mere reference by a Magistrate to a police report is not enough to satisfy the requirements of Section 144 but that the Magistrate is bound to set out the material facts of the case in his written order under that section.

13. I am, therefore, of the view that the learned Magistrate who passed the ex parte order did so too lightly and his order was improperly made without sufficient reason and must be set aside. The learned Magistrate before whom I. A. J. was filed also failed to exercise the jurisdiction vested in him by law by virtue of Section 144 (4), Criminal P. C., in not considering that application on its merits but throwing it out summarily.

14. The question now remains as to the relief which can now be given to the petitioners. Mr. U. Subramanyam, the learned counsel for petitioner, has not been able to point out any precedents where in such case the matter was remanded for further enquiry and to effect restitution necessitated by the setting aside of the wrong order under Section 144 as prayed for by the petitioners in I. A. I and that too when the period of the order has expired long ago, I think the Criminal Court is not the proper forum where the complicate questions as to ownership and value of the cattle alleged to have been removed should now be gone into Section 144 does not contain any provision for so doing. An adjudication by a civil Court would be the more proper remedy. Mr. U. Subramanyam complains that his clients should nor. be driven to a civil Court when their grievance and prayer has not been heard or adjudicated upon. But this cannot be helped and the party aggrieved against the wrong order has a fully effective and satisfactory remedy in the civil Court.

15. This petition is therefore dismissed.


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