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Hrushikesh Acharya and anr. Vs. Balaram Pati and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 287 of 1966
Judge
Reported inAIR1967Ori72; 33(1967)CLT58; 1967CriLJ798
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 144(1), 144(4), 144(5), 144(6), 435 and 439
AppellantHrushikesh Acharya and anr.
RespondentBalaram Pati and anr.
Appellant AdvocateS. Mohanti, ;P.K. Dhal and ;S.C. Jena, Advs.
Respondent AdvocateStanding Counsel and ;S. Misra (2), Adv.
DispositionRevision dismissed
Cases ReferredRama Barik v. Emperor).
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 2340 d/l-4-66 i am satisfied that the situation is becoming graver and there is apprehension of breach of peace and its immediate prevention is desirable. i am also satisfied that if the second party is restrained from holding the hat, the apprehension of breach of peace will be averted. , must be satisfied that there it sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable. if he is so satisfied, he may, by a written order stating the material facts of the case, direct any person to abstain from a certain act. it also failed to consider the allegations made by the petitioners..........section 144, cri. p. c. for restraining the petitioners (members of the second party) from holding cattle market on plot nos. 348, 349 and 350 under khata no. 381 in village barakoti. this remained pending before the deputy superintendent of police, who sanctioned forwarding of the report to the sub-divisional officer, jaipur, on 28-1-1966. on 25-3-66 hrushikesh acharya, petitioner no. 1 filed an application in the court of the sub-divisional officer stating therein that the petitioners should be heard before orders were passed on the prosecution report.on 26-3-66 the sub-divisional officer issued notice to both the parties to appear on 6-4-66 for hearing. on the same day the petitioners filed an application before the sub-divisional officer for restraining balaram pati (opposite party.....
Judgment:
ORDER

G.K. Misra, J.

1. On 24-12-1965 the Officer-in-charge, Binjharpur Police Station, submitted a report to the Circle Inspector of Police to initiate a proceeding under Section 144, Cri. P. C. for restraining the petitioners (members of the second party) from holding cattle market on plot Nos. 348, 349 and 350 under khata No. 381 in village Barakoti. This remained pending before the Deputy Superintendent of Police, who sanctioned forwarding of the report to the Sub-Divisional Officer, Jaipur, on 28-1-1966. On 25-3-66 Hrushikesh Acharya, petitioner No. 1 filed an application in the Court of the Sub-Divisional Officer stating therein that the petitioners should be heard before orders were passed on the prosecution report.

On 26-3-66 the Sub-Divisional Officer issued notice to both the parties to appear on 6-4-66 for hearing. On the same day the petitioners filed an application before the Sub-Divisional Officer for restraining Balaram Pati (Opposite party and first party) from holding cattle market who was creating disturbance in the market held by the second party. The case of the second party in that petition waft that they were holding cattle market on plot Nos. 1498, 1500 and 1508 and not on the disputed lands. The S. D. O. ordered that the case should be put up on 6-4-66 with the connected papers; but in the meantime he transferred the case to the file of Sri K. B. De, Magistrate, First Class, for disposal. On 1-4-66 Sri De passed the following order-

'Heard lawyers for both the parlies and the C. S. I. Seen the letter of S. D. P. O. (Sub-Divisional Police Officer) No. 2340 D/l-4-66 I am satisfied that the situation is becoming graver and there is apprehension of breach of peace and its immediate prevention is desirable. I am also satisfied that if the second party is restrained from holding the hat, the apprehension of breach of peace will be averted. As such the second parly is directed to abstain from holding the unauthorised cattle market at Barkoti-Utarkul under Section 144, Cri. P. C. Application if any against the order should he filed by the date fixed, that is, 6-4-66. Later: A petition is filed by the lawyer on behalf of the second party for lime to obtain stay order. In view of the apprehended danger of breach of peace no lime is allowed'.

Against this order the petitioners filed Criminal Revision No. 19 of 1966 in the COURT of the Addl. District Magistrate (Executive), Sri R. K. De, for rescinding the order dated 1-4-66. The learned A. D. M. stayed further proceedings and execution of the order dated 1-4-66. On 8-4-66 the opposite party filed a counter before the A. D. M. In para 7 of the counter it was admitted that plot Nos. 348, 349 and 350 had been settled with the petitioners in the Orissa Estates Abolition Appeals decided by the Additional District Collector, Cuttack. It was stated therein that the disputed lands were settled with the petitioner on their plea that the lands were mango top and were never used for cattle market. The opposite party accordingly contended that once the lands were settled with the petitioners on a definite case that it was never used for cattle market, the petitioners should be restrained from using the said lands as cattle market. On 16-4-66 the learned A D. M. dismissed the criminal revision. Against this order, the present criminal revision has been filed.

2. On 31-5-66 the trial Magistrate passed an order that as two months had already expired, the case was to he filed.

3. A Magistrate, while passing an order under Section 144 (1), Cri. P. C., must be satisfied that there it sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable. If he is so satisfied, he may, by a written order stating the material facts of the case, direct any person to abstain from a certain act. The section thus enjoins that material facto of the case must be stated in the order. In this case, there was a police report which has been referred to in the order. Though the order of the learned Magistrate dated 1-4-1966 does not show the material facts on which he relied for his satisfaction that an emergency existed, an interference with this order may not be justified in all cases. If in facl there are materials justifying the order, omission to set out the material facts in the order may amount to a mere irregularity.

4. From chronology of facts, already mentioned, it would be noticed that the petitioners filed an application before the A. D. M. challenging the order of Sri De under Section 144 (4), Cri. P. C. which enacts that 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. This sub-section thus confers power on the A. D. M. to rescind an order of the Magistrate under Section 144 (1). This jurisdiction has been hold as a special one and not as appellate or revisional jurisdiction. Once such an application is made, the Magistrate is to exercise powers under Sub-section (5) which is to the effect that where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and, if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.

It is conceded that both the parties were given full hearing by the learned A. D. M. who rejected the application wholly. So the sole question for consideration is whether the reasons recorded by him in writing justified confirmation of an order under Section 144 (1), Cri. P. C. An examination of the aforesaid question necessitates clarification of the respective cases of the parties. The case of the opposite party is that Utarkul hat belongs to Dadhibabanjew, a public religious institution, and other deities.

5. The disputed plots 348, 349 and 350 lie adjacent to the lands of the deities on which Utarkul hat is being held. After the disputed lands were settled with the petitioners in the Estate Abolition Appeals they have started a cattle market on them. As two rival markets were being held side by side, there is dispute resulting in apprehension of breach of the peace and so the petitioners should be restrained from holding their cattle market which they have newly started to avert breach of peace. The case of the petitioners is that no cattle market is at all held on the lands of the deity. Only a vegetable market is held on the deity's land. The petitioners are not having any cattle market on the disputed lands but on their other lands of which the plot numbers have already been mentioned. The petitioners are entitled to exercise their civil rights and cannot be restrained from doing so unless they do certain illegal acts resulting in apprehension of breach of the peace.

6. From the averment of facts given in the order of the learned A. D. M., which is somewhat confused, it can be safely stated that the opposite party is holding the cattle market on the deity's land. The disputed lands are adjacent to the said cattle market. After these lands were settled with the petitioners, they have started holding a cattle market on the disputed lands. As both the cattle markets are just contiguous, it is but natural that it would result in competition. Both parties would be trying to entice and forcibly take away the customers. This would necessarily result in breach of the peace. This is why both the parties have filed applications before the Magistrate that the other party should be restrained. It is in this background and state of evidence, the question for consideration is whether the order under Section 144 (1) restraining the petitioners from holding the cattle market is justified.'

7. It is too elementary that Civil and Criminal Courts are meant for protection of private and public rights. They cannot be used for suppression or extinction of legal rights. Ordinarily it is the Civil Court which has jurisdiction and power to determine and dispose of cases of civil nature. Criminal Court, however, gets jurisdiction to interfere with the civil rights if in the exercise thereof there is apprehension of breach of the peace. Maintenance of public peace is one of the paramount considerations in social structure.

It is not disputed that the suit lands were settled with the petitioners on their plea that they were a mango tope and were never used as a cattle market. The opposite party challenged the claim of the petitioners in the Estate Abolition Appeals with a case that those were being used as cattle market. On the materials of that case, the claim of the petitioners was upheld and the lands were settled on them. Subsequently they have been recognised as tenants on acceptance of rent. The petitioners thus have a clear and full title to the disputed lands and their possession of same is not also disputed. After the acquisition of title, the petitioners have full right in putting their lands to any legal use. They have now started holding a cattle market newly. Such user of the lands is not prohibited in law. Petitioners are therefore entitled to use the disputed lands for holding a cattle market.

8. Just adjacent to the disputed lands are the lands of the deity over which the opposite party, as the trustee, is holding a cattle market. In law the two cattle markets can be held side by side even though cut-throat competition may be inevitable. If no illegal acts are committed by any of the parties in interfering with the rights of the other, the Criminal Court cannot interfere with the private rights of the parties If, however, while exercising the respective rights there is dispute and it results in apprehension of breach of the peace, the Criminal Court gets jurisdiction to control the situation and avert breach of the peace.

The order of the A D. M. does not indicate any materials showing the illegal acts committed by the petitioners resulting in apprehension of breach of the peace If the petitioners exercise their normal avocation of life, they cannot be restrained from doing it The order on the face of it shows no reasons why only the petitioners were restrained and that an extreme order prohibiting them from holding cattle market was passed. If they committed certain illegal acts, only those acts should have been prohibited from being performed. The case of the petitioners does not become worse merely because the market started by them is recent in origin.

9. It has been held that in cases of this nature, the more appropriate remedy is to start a proceeding either under Section 107 or under Section 146, Cri. P. C. In those proceedings, evidence can be taken and equally effective orders can be passed without interfering with private rights which require careful consideration before such interference. An order under Section 144. Cri. P. C. is of a temporary character. There would be recurrence of trouble after expiry of two months and the dispute between the parties would remain still unresolved. This matter has been fully discussed by this Court in Criminal Revn. No. 292 of 1966 (Ori), Iswar Behera v. Iswar Dangua. The same view has been taken by a series of decisions of the Patna High Court (see AIR 1935 Pat 461, Hansraj Pd. Singh v. Abdul Jabbar and AIR 1940 Pat 185. Rama Barik v. Emperor).

On the application of the aforesaid tests, the order of the A D M . which is under revision, is liable to be quashed. The judgment does not at all indicate as to why the order under Section 144, Cri. P. C was maintained in absolute terms in interfering with the private rights of petitioners. The order on the face of it does not show the illegal acts committed by the petitioners resulting in the apprehension of breach of the peace. It also failed to consider the allegations made by the petitioners against the opposite party to the effect that the latter was interfering with their rights by forcibly inducing customers to purchase from his market. The order, as it stands merely deals with the private rights of the parties without consideration of the question as to how the exercise of the right resulted in apprehension of breach of the peace.

If the order would have been in force and would have lapsed at the expiry of two months under Section 144 (6), Cr. P C., it would have been quashed. It is, however, the usual practice of this Court not to interfere with such an order which has exhausted itself and is no longer in force, The special circumstances of the case, justified an examination of the question, so that if troubles again arise over the same question, the Magistrate would not exercise his jurisdiction with material irregularity or illegally.

10. Subject to the aforesaid observation,the revision is dismissed.


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