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Taturam Sahu Vs. the State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 208 of 1950
Judge
Reported inAIR1953Ori96
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 144
AppellantTaturam Sahu
RespondentThe State of Orissa
Appellant AdvocateR.K. Ghose, Adv.
Respondent AdvocateGovt. Adv. and ;K. Patnaik, Adv.
Cases ReferredBindeshwari Singh v. Ra
Excerpt:
.....if after due enquiry the learned magistrate is satisfied that the right of the zamindar to sell kendu leaves throughout his zamindari even though they might have grown on the tenants' lands should be respected until a decision to the contrary is given by the civil court and if he considers that certain interested parties are likely to challenge that right resulting in breach of the peace there seems to be no reason as to why he should not take preventive action under section 107, cr. the word 'place' has been used to denote 'certainty' rather than 'size'.one could be compelled to interpret the word as an area relatively small only if the preventive order, in its bearings of operativeness and suitability for obedience, would fail of itself or, in other words, could not be amenable to..........magistrate of nawapara on 29-4-1950, restraining the general public from purchasing or exporting kendu leaves from nawapara thana and exempting one ramji purushottam alone from the operation of the said order. no ad interim order appears to have been passed and the affected parties were not given an opportunity of making their submissions before the magistrate prior to his making the order absolute. he acted on the report of the police to the effect that ramji purushottam was the contractor for the purchase of kendu leaves in khariar estate and that there was a likelihood of serious breach of the peace if other persons were permitted to purchase the said leaves in that estate. it further appears from the police report that the zamindar of khariar was claiming the exclusive right to.....
Judgment:

Nahasimham, J.

1. This petition is for revising an order under Section 144, Cr. P. C., passed by the Sub-Divisional Magistrate of Nawapara on 29-4-1950, restraining the general public from purchasing or exporting Kendu leaves from Nawapara thana and exempting one Ramji Purushottam alone from the operation of the said order. No ad interim order appears to have been passed and the affected parties were not given an opportunity of making their submissions before the Magistrate prior to his making the order absolute. He acted on the report of the police to the effect that Ramji Purushottam was the contractor for the purchase of Kendu leaves in Khariar estate and that there was a likelihood of serious breach of the peace if other persons were permitted to purchase the said leaves in that estate. It further appears from the police report that the zamindar of Khariar was claiming the exclusive right to sell Kendu leaves even of those trees which grow on the tenants' holdings though this right was being recently challenged by some of the tenants. Thus though the order may at first sight appear to be the result of friction, between Ramji Purushottam on the one hand and other rival purchasers of Kendu leaves in Nawapara thana on the other, in reality the dispute is primarily between the zarnin-dar of Nawapara on the one hand and his tenants on the other as regards their respective rights to sell Kendu leaves growing on the lands of the tenants. In a dispute of this type where rights of the parties are involved the learned Magistrate should, in all fairness have issued an ad interim order restraining both parties and then after hearing them in Court made the order absolute against one party. The learned Magistrate has not done anything of this kind nor has he cared to scrutinise the Wajib-ul-arz which seems to be the main basis of the claim made, by the zamindar to sell Kendu leaves growing within his zamindari. We do not wish to say anything as regards the respective rights of the parties to sell Kendu in Nawapara thana. This may become a subject-matter of a regular litigation in future.

2. Mr. Ghose's main contentions in favour of the petitioner are: (i) such a general order is outside the scope of Sub-section (3) of Section 144, Cr. P. C., and as such is invalid and (ii) in any case such an order was highly improper in view of the clear directions given by this Court in Cr. Revs. Nos. 218 and 228 of 1949 to the effect that in future if there was apprehension of breach of the peace the learned Magistrate should start proceedings either under Section 107 or under Section 145, Cr. P. C., as the case may be and not pass summary orders of this type.

3. The first contention of Mr. Ghose is based on a construction of Sub-section (3) of Section 144 which says that an order under that section may be directed 'to the general public when frequenting or visiting a particular place'. 'Mr. Ghose has urged that the word 'place' must be given a fairly restricted meaning especially when it is preceded by the words 'frequenting' or 'visiting' and that an order addressed to the general public in a small locality such as a portion of a town or a village may be a valid order but an order addressed to the general public of such a large area as Nawapara thana was clearly outside the scope of that section. In support of this argument he has mainly relied on -- 'Moti Lal G. v. Emperor', AIR 1931 Bom. 513 -- 'Abdul Majid v. Nrependra Nath', A. I. Rule 193-1 Cal. 393 and some other decisions, where the expression 'place' has been given a somewhat restricted construction. But later decisions have taken a different view and have gone to the extent of saying that there is not muck distinction between a place and an area and so long as it is clearly specified and well-defined in the order there is no illegality in including a large area such as a district within the scope of an order under Section 144, Cr. P. C. For instance in -- 'Abdul Karim S. v. Emperor', A. I. Rule 1937 Lah 80 an order addressed to the general public of Lahore district was held to be valid. The entire law on the subject has been fully dealt with in a Pull Bench decision of the Allahabad High Court in -- 'Emperor v. Afaq Hussain', A. I. Rule 1941 All 70 where it was held that a particular place referred to in Section 144 (3), Cr. P. C. may be a large area & all that is necessary is that the place should be so sufficiently defined that the public is reasonably notified of its extent. With respect, I am inclined to agree with the aforesaid decision and to hold that the order of the Magistrate cannot be impugned solely because it is ad-| dressed to the general public of Nawapara thana.

4. But the second contention of Mr. Ghose appears to have much force. The Sub-Divisional Magistrate of Nawapara passed a similar order on 3-5-49. That was taken up in revision before the High Court in Cr. Rev. No. 218 of 1949 and though the Hon'ble Judges did not like to disturb the order which had ceased to be in force due to efflux of time they made it clear that the dispute was of a civil nature and that it would be proper to leave the parties to their civil rights. They further added that if there were sufficient materials action may be taken either under Section 107 or under Section 145, Cr. P. C. The aforesaid judgment of the High Court was delivered on 29-7-1919 but on 2-7-49 the Sub-Divisional Magistrate issued a fresh order thereby, in effect, extending the operation of his previous order for a further period of two months. This second order was held to be invalid and the High Court in Cri. Revn. No. 228 of 1949 set it aside. It is strange that notwithstanding the clear instructions given to the Magistrate in the aforesaid two judgments of the High Court he should have again persisted in passing a drastic summary order of the present type. We do not wish to fetter, in any way, the discretion of the Magistrate to take appropriate action when there is imminent apprehension of breach of the peace. It may sometimes be necessary in cases of extra-ordinary emergency even to interfere with the rights of the parties. But in the present case where the High Court had clearly indicated that the dispute was of a civil nature and that, if necessary, preventive action under other sections of the Criminal Procedure Code should be taken it was highly improper on the part of the Magistrate to have again repeated the same order. It is true that the present order under revision has already expired by the efflux of time. But it is necessary to interfere with the order so that the Magistrate may not be encouraged to use his powers in the same manner when there is apprehension of trouble at the time of the next plucking season. In this connection we would invite the attention of the Magistrate to -- 'F.E. Chresten v. Carter', AIR 1939 Pat 512 and -- 'Bindeshwari Singh v. Ra-ghunandan Mahto', AIR 1950 Pat 559 where this type of repetition of successive orders under Section 144, Cr. P. C. so as to result in a permanent interference with private rights was deprecated. If at the time of every plucking season the learned Magistrate passes a summary order of this type thereby conferring a monopoly on Ramji Purushottam such an order would, in effect, be a perpetual injunction in favour of Ramji Purushottam's monopoly and against all rival purchasers.

5. As to what should be the nature of the preventive action which the Magistrate may have Co take if there is recrudescence of trouble at the next plucking season it is difficult for us to lay down any hard and fast rule. We do not wish it to be understood that a dispute of this type would come within the scope of Section 145, Cr. P. C. This question has not been fully argued before us and it is not necessary to decide it in the present proceeding. But if after due enquiry the learned Magistrate is satisfied that the right of the zamindar to sell Kendu leaves throughout his zamindari even though they might have grown on the tenants' lands should be respected until a decision to the contrary is given by the civil Court and if he considers that certain interested parties are likely to challenge that right resulting in breach of the peace there seems to be no reason as to why he should not take preventive action under Section 107, Cr. P. C. against the ring-leaders whose names have been given in the police report. But to repeat successive orders under Section 144, Cr. P. C. in a summary manner without hearing the parties and in direct contravention of the instructions given by the High Court is highly improper.

6. We would, therefore, set aside the order of the Magistrate dated 29-4-1950.

Bay, C.J.

7. I agree that the Magistrate's order, though no longer in force for efflux of time, shall be declared to have been improper when passed.

8. Sub-section (3) of Section 144, Cr. P. C., has been more or less constantly a source of controversy in the matter of preventive order under the section. I would agree with my learned brother's view buttressed as it is by the Full Bench decision of the Allahabad High Court, referred to in his order, that the word 'place' is wide enough, in its connotation, to mean 'an area, big or small'. 'Place' certainly does not mean 'geometrical point of space on the earth'. Such a point is not understood by the word 'place'. A 'place' has innumerable such points conjoined together to produce 'an area'. It must mean area having length and breadth. 'An area' defined by specified boundaries and described otherwise to delimit its ambits is known as 'a place'. There is nothing in the section to indicate that the place is either as big or as small as a town, village, market-place or otherwise. It may be as big as it can be. The word 'place' has been used to denote 'certainty' rather than 'size'.

One could be compelled to interpret the word as an area relatively small only if the preventive order, in its bearings of operativeness and suitability for obedience, would fail of itself or, in other words, could not be amenable to enforcement. 'The public generally' can be subjected to the inhibition irrespective of any limitation, but 'the relevant activities' must relate to a place or locality. This is intended by the words 'when frequenting or visiting a place'. In this case, the acts prohibited are those of 'purchase and export of Kendu leaves' winthin the area specified in that behalf in the order concerned. As at present advised, I shall reserve my opinion as to if issuance of a prohibitive order of the kind during every successive season for collection, sale and export of kendu leaves would infringe its temporary character assigned to it within the section and would, therefore, be bad in law; but I am sure such repeated orders in favour of one of the several belligerent parties having conflicting, claims to a particular right or property would be beyond the scope and object of the section and hence improper. As such it should be interfered with by this Court but always subject to the condition that the Magistrate must have had other legally available means of preventing imminent breach of the peace. In this connexion, I would refer the Magistrate to what my learned brother has already said and with which I am in perfect agreement.


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