1. This rule has been issued at the instance of five persons against whom an order Under Section 144, Criminal Procedure Code, was made by the Deputy Magistrate of Jalpaiguri on 11th December 1933. The order was made in connexion with a hat which was established at Taluk Jamgram at a distance of about a furlong from an old and long established hat which was in existence at a place called Baura. The two hats began to sit on one and the same days, namely Mondays and Thursdays. For the purpose of this case it is necessary to set out a few facts. The police of Patgram, within whose jurisdiction the places aforesaid are situate, submitted a report to the effect that there was no apprehension of the breach of the peace by reason of the hats being situated in close proximity to each other and though they were being held on one and the same days, This report was placed before the Sub-divisional Magistrate at the instance of the first party but the Sub-divisional Magistrate was not satisfied that upon such report, challenged though it was by the first party, he would be justified in making an order Under Section 144, Criminal P.C., against the second party.
2. On 1st December 1933 he made an order calling upon the first party to adduce evidence on 8th December 1933, in order to show that there was really an apprehension of an immediate breach of the peace and he also made an order calling upon the second party, the petitioners in this Rule, to appear before him and represent their case, if they liked to do so. In the meantime the police appears to have served warning notices Under Section 154, I.P.C., on both the parties. On 8th December 1933 the Sub-divisional Officer was away on tour and the Deputy Magistrate, Mr. K.P. Ghose, was in charge of the current file of the Court of the Sub-divisional Magistrate. He was busy with some other case on that date and could not therefore take up the present case till the next day, i.e., the 9th December 1933. On the date last mentioned seven witnesses were examined on behalf of the first party and were cross-examined on behalf of the second party, the petitioners before us. On 11th December 1933 Mr. K.P. Ghose on a consideration of the materials that he had before him decided to issue orders Under Section 144, Criminal P.C. forbidding the second party as also the public generally from holding the hat. It is this order Under Section 144, Criminal P.C., that was issued by Mr. K. P. Ghose against which the present rula is directed.
3. One of the grounds on which this rule has been issued relates to the question of jurisdiction of Mr. K.P. Ghose to make the order aforesaid. The question of jurisdiction arises in this way. On the date on which Mr. K.P. Ghose made the order the Sub-divisional Magistrate appears to have returned from his tour and was present at the head-quarters; and the contention put forward on behalf of the petitioners is to the effect that in such circumstances Mr. K.P. Ghose who was only in charge of the current files of the Court of the Sub-divisional Magistrate had no jurisdiction to deal with the case and pass final orders on it. This question has been considered by the Deputy Commissioner to whom an application was made by the petitioners subsequently Under Clause 4, Section 144, Criminal P.C. The learned Deputy Commissioner has disposed of this question in the following words:
It was further argued that the learned Deputy Magistrate who passed the order complained of had no jurisdiction to do so. But in my opinion he had jurisdiction inasmuch as ha was dealing with the file of the Sub-divisional Magistrate during the latter's absence on tour. It is true that the Sub-divisional Magistrate returned from tour the morning on which the order was passed, but it was not known that he would attend Court and he did not do so until late.
4. In the circumstances referred to by the learned Deputy Commissioner we think it was open to Mr. K.P. Ghose to deal with the case as he has done. It is not suggested that Mr. K.P. Ghose is otherwise disqualified from making an order Under Section 144, Criminal P.C. This ground therefore in our opinion is not well founded.
5. The second ground on which the order complained of is assailed relates to a question of procedure and it arises in this way: It has already been stated that by the order which the Sub-divisional Magistrate had made, the first party had been called upon to adduce evidence and the second party, that is to say the petitioners before us, were allowed to appear and represent their case if they wanted to do so. It appears that the learned Deputy Magistrate allowed the second party to cross-examine the witnesses examined on behalf of the first party. When the witnesses for the first party had been examined a petition appears to have been put in on behalf of the second party in which it was prayed that a local investigation might be made and also that evidence might be taken and then the case disposed of. On this petition the learned Deputy Magistrate made an order in these words:
The first patty was asked to adduce evidence in support of their prayer for proceeding against the second party and that has been done. The second party was allowed to cross-examine the witnesses examined. This may be filed.
6. Apparently, by this petition the second party prayed that the case might not be disposed of on the evidence of the witnesses examined on behalf of the first party alone but that a local investigation might also be made and further that witnesses might be allowed to be examined on their own behalf. Otherwise there is no meaning in the statement that is to be found in this petition and which is to the effect that evidence might be taken of the witnesses before the case was disposed of. The position therefore was that this prayer of the petitioners being refused the case was disposed of on such evidence only as the first party had adduced in the case. A complaint with regard to this matter also appears to have been made before the Deputy Commissioner when the second party moved him under Clause (4), Section 144, Criminal P.C., for setting aside the order. This will appear from ground No. 2 taken in the petition for revision filed in this connexion. Under the law an ex parte order Under Section 144, Criminal P.C., may be made 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 is directed: Clause (2), Section 144, Criminal P.C. But when such an order is made it is clear from the provision of Clause (4) of that section that a party aggrieved might appear before the Magistrate who had made the order ex parte and ask him to rescind or alter the order; and Clause (5) of the section says that where such an application is received the Magistrate shall afford to the applicant an early opportunity of appearing before him whether in person or by pleader, and showing cause against the order.
7. If the order which was made by the learned Deputy Magistrate Under Section 144, Criminal P.C., on 11th December 1933 be regarded as an ex parte order made under the provision of Clause (2), Section 144 of the Code, the petitioners undoubtedly, had the right to have an opportunity of appearing before the Magistrate and showing cause against the order, and one of the ways in which they could have done so was by adducing evidence for the purpose of satisfying the Magistrate that the order should be cancelled or rescinded. The petitioners also had the right, when the order is treated as one Under Section 144, Clause (2) of the Code, to go before the District Magistrate and to ask for a similar opportunity. If the order is to be treated under that sub-section the petitioners are entitled to have that opportunity; but neither the trial Magistrate nor the learned Deputy Commissioner has given such an opportunity to the petitioners. The position therefore is that if the order is to be treated as one passed ex parte, the petitioners must now be given an opportunity to adduce evidence in order to show cause against it and to have it rescinded or altered. But then the difficulty in allowing this order to remain as an ex parte order against the petitioners, with liberty to adduce evidence in order to have it rescinded or altered, is that the order is not in accordance with law for certain reasons which we shall presently give. The order as drawn up on 11th December 1933 runs in these words:
I do hereby direct Under Section 144, Criminal P.C., the persons named in the margin in particular and the public generally from the date of the promulgation of this order to abstain from holding or attending hat at or near Taluk Jamgram, P. S. Patgram, on Mondays and Thursdays and not to do any unlawful acts by seizing and restraining traders and threatening or committing violence to people so as to dissuade them from attending Baura hat and not to commit any breach of the peace or disturb the public tranquillity.
8. This order is set out in the notice that was issued and subsequently served on the petitioners. It cannot be gainsaid that the terms of this notice must follow the terms of the order in pursuance of which the notice is issued. If one looks at the terms of that order one finds that what was stated there was something different. What was stated was this:
Issue orders Under Section 144, Criminal P.C., forbidding the public generally and the persons named in the petition particularly to hold hats at Jamgram Taluk west of Baura hat on Mondays and Thursdays, etc.
9. While it may be conceded that it is open to a Magistrate to make the order in such terms as holding a hat at or near the Taluk Jamgram in order that it may not be possible for the party against whom such an order is made to evade the terms of the order by removing the hat, the holding of which is sought to be prevented, to a short distance, at the same time it is perfectly clear that before a notice containing such terms is issued there must be a proper determination of the question as regards the limits within which the order is to be operative. So far as the order of Mr. K.P. Ghose is made in pursuance of which the notice was issued there was no question of restraining the petitioners from holding or attending the hat at any place beyond the limits of Jamgram Taluk. But the notice that was issued, as has already been stated, was couched in terms far wider then the terms of the order itself. Then again so far as the order means to operate as against the public generally it does not follow the terms of Clause (3), Section 144 of the Code, as has been pointed out in the ease of Ashutosh Roy v. Harish Chandra : AIR1925Cal625 . Such an order Under Section 144 of the Code, in so far as it directs the public in general to abstain from attending the hat, is not warranted by the terms of Clause (3), Section 144 of the Code because such an order can only be against the public in general within the limitation imposed by that clause, namely that it can be made against them only when frequenting or visiting a particular place. In that way again the order is not one which is warranted by the provisions of the law. We are of opinion therefore that the order complained of in this case, even though it may be treated as an ex parte order made against the second party, cannot be allowed to stand for the reasons which we have already given. The Rule, in our judgment, should be made absolute and we order accordingly.
10. The result is that the order complained of is set aside leaving it to the authorities to take preventive action in future should such action be necessary for the maintenance of public peace.