1. These are two petns. for revn. of orders mode by a learned Mag. under Section 144, Cr. P. C.
2. The opposite parties presented petns. to the Dist. Mag. complaining that the present petrs. in these cases were interfering with their possession. It seems that these petns. wore not even verified but the Dist. Mag. immediately issued an order in these terms :
'The usurping party may please be restrained immediately under Sections 144, 107, Cr. P. C. & asked to come through Civil Ct. & the party in possession may be allowed to continue in possession.'
3. Strange to say, this order is in terms addressed to the Supdt. of Police. The latter on receiving this order also made an order in these terms :
'S. D. O. will please issue order as directed & send to O. C. Harishchandrapur P. S. to take immediate steps.'
4. Presumably the learned Dist. Mag. was acting under the second para, of Sub-section (1) of Section 144 which provides :
'such Mag. any, by a written order stating the material facts of the case & served in manner provided by Section 134 direct any person to abstain from a certain act or to take certain order with certain property in possession or under his management if such Mag. considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury, or risk of obstruction annoyance or injury, to any person lawfully employed, or danger to human life health or safety or a disturbance of the public tranquillity or a riot, or an affray.'
5. It is clear that the order must be served in the manner provided by Section 134, Cr. P. C. & there is nothing in Section 144 which authorises the learned Dist. Mag. to address an order to the Supdt. of Police. Sub-section (3) of Section 144 provides that an order under that section may be directed to a particular individual, or to the public generally. There is nothing to suggest that it is an order directed to the head of the police in the district.
6. What happened afterwards is stranger still. The Supdt. of Police took it upon himself to issue an order to the Sub-Divisional Mag., although I do not think it would be conceded for a moment that a Mag. is under the orders of a Supdt. of Police. But apparently such is the case in the Malda district.
7. The matter eventually came before the Sub-Divisional Officer & he on 8-11-1948 made this order:
'Issue order under Section 144, Cr. P. C. restraining the 2nd party from entering upon the disputed land. Send the order by Special Messenger to O./C Harishchandrapur for service & return by 22-11-48. Notice also 1st party.'
8. It will be seen that in both the orders of the learned Dist. Mag. & the Sub-Divisional Mag. it is assumed that the opposite parties before us were in possession & it is assumed that their possession was being disturbed by the present petnrs., though, as I have said the petns. made to the Dist. Mag. were not even verified & he took no evidence of any kind. How these orders could be passed in those circumstances I am wholly unable to say, & it appears to me there was no material at all before the Cts. upon which they could hold or assume that the present petnrs. were ousting the present opposite parties who were lawfully in possession.
9. The present petnrs. filed written-statements in which they pleaded that the lands in question had been held as chakran lands by a person long since dead. They alleged that the chakran lands had been resumed by the petnrs. & further that the present opposite parties had no connection whatsoever with the deceased chakran tenant.
10. It seems that the Sub-Divisional Officer took no evidence & in a very short order disposed of the matter. The order begins by stating that the first party is the recorded chakran tenant of the opposite parties.
11. It is contended that that is a mis-statement & that the record of rights shows that the chakran tenant was one Chetru Sardar who is dead. The record of rights is before us & it does show Chetru Sardar as the chakran tenant. If the present opposite parties are not successors of this Chetru Sardar, then there is no basis whatsoever for the statement of the Sub-Divisional Officer that the present opposite parties are the recorded chakran tenants of the present petnrs.
12. Mr. Talukdar on behalf of the present petnrs. has urged that the whole proceedings before the Sub-Divisional Mag. were conducted in a most extraordinary way. The learned Mag. heard no evidence & there is nothing to show that he actually received the copy of the record of rights in evidence though that is in the record. If he took it in evidence then his statement that it is admitted that the present opposite parties were chakran tenants of the petnrs. is unintelligible.
13. In these cases Mags. must ascertain upon evidence who is in possession & if it is necessary they then can issue orders restraining other persons from interfering with such possession. These orders however seem to be issued without any consideration whatsoever. Only the other day cases came before a Bench of which I was a member where a Mag. had issued orders restraining the person in occupation from remaining in occupation. In other words the learned Mag. had evicted the person in possession & had placed the usurper in possession by means of an injunction under this section. Quite clearly Section 144, Cr. P. C. was never intended for such purposes. The section is intended to give Mags. powers to take immediate action to prevent breaches of the peace & such like; but even so learned Mags. should be careful to ascertain who is in possession & who is the disturber of that possession. Issue of an injunction of this sort though the order is only effective for a comparatively short space of time is a serious matter & these orders should not be made without an investigation, as to the true facts of the case. As I have said in this case all the Cts. assumed that the unverified petns. of the present opposite parties were true & without any real enquiry issued an injunction. If the learned Mag. had studied the record of rights that in itself would have given him cause to think. The present opposite parties' case can only be true if they are successors of Chetru Sardar mentioned in the record of rights & apparently on that no evidence whatsoever was given.
14. The result is that the orders passed in these cases cannot possibly stand & must be set aside, The cases are sent back to the Ct. below to be decided after hearing the evidence adduced by the parties & after consideration of the record of rights.
15. The petns. are therefore allowed & the Rules are made absolute in these terms. The cases should be reheard by another Mag. if there is a Mag. in the district empowered to hear these matters under Section 144, Cr. P. C.
Das Gupta, J.
16. I agree.