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Purna Chandra Tewari Vs. Saogat Ali Mallick and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 374 of 1960
Judge
Reported inAIR1960Cal715,1960CriLJ1445
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 144, 144(4) and 439
AppellantPurna Chandra Tewari
RespondentSaogat Ali Mallick and ors.
Appellant AdvocateJ.M. Banerji and ;M. Sinha, Advs., i/b., S.K. Bose, Solicitor
Respondent AdvocateS.S. Mukherjee and ;Murari Mohan Mukherjee, Advs.
Cases ReferredPitchai v. Muhammad Atham
Excerpt:
- .....144 of cr. p. c. requiring any person to abstain from a certain act if in the opinion of the learned magistrate, there is sufficient ground for proceeding under this section and immediate prevention or a speedy remedy is desirable. this court should be loath to interfere with the exercise of such discretion by the learned magistrate unless it be satisfied that the order of the learned magistrate was not legal or strictly proper. in this case the learned sub-divisional magistrate passed a cryptic order and it is difficult to decide from the same if he at all applied his mind on the facts of the case by referring to the relevant documents and to the surrounding circumstances. it is well settled that the order passed by the magistrate in a proceeding under section 144 of the cr. p. c......
Judgment:
ORDER

Niyogi, J.

1. This Rule is directed against an order passed by the learned Sub-Divisional Magistrate, Alipore, refusing to issue any order under Section 144 of the Code of Criminal Procedure in favour of the petitioner. The petitioner first party wanted to restrain the opposite parties under Section 144 of the Code of Criminal Procedure from plying any boat at the Ferryghat of Achhipore-Uluberia on the river Hooghly or within two miles thereof on either side of the Ferryghat. On receipt of this petition, the Sub-Divisional Officer, Alipore, directed the O. C. of Budge Budge Police Station to enquire and report by 24-3-60 and in the meantime he was enjoined to see that no breach of the peace took place. On enquiry the O. C., Budge Budge Police Station, submitted a report on 3-3-60 by which he prayed that a proceeding under Section 144 of the Code of Criminal Procedure might be drawn up against the above noted persons, i.e., the opposite parties in this case, restraining them to ply ferry-boat so that law and order might be maintained at the Achhipur-Uluberia ferryghat. The learned Sub-Divisional Magistrate then passed this order on 4-3-60 :

'Seen report of the police. Heard the lawyer of the petitioner. I do not think that there is any apprehension of breach of the peace at present. The petitioner can go to the Civil Court for relief. Filed'. The petitioner first party has come to this Court against the said order of the learned Sub-Divisional Magistrate.

2. A preliminary objection was taken by Mr. Mukherjee appearing for two of the opposite parties (viz. Nos. 4 and 17) to the effect that the petitioner first party should have in the first instance gone to the District Magistrate or Additional District Magistrate, as the case may be, for rescission or alteration of the order made by the learned Sub-Divisional Magistrate as provided for under Section 144(4) of the Cr. P. C. It is contended that the petitioner could not get any remedy before this Court under Section 439 of the Cr. P. C. without first applying under Section 144(4) of the Cr. P. C.

3. In my opinion, there is nothing to prevent the High Court to interfere with the positive or negative order passed under Section 144 of the Cr. P. C. by a Magistrate. As held by the Madras High Court in a case reported in Pitchai v. Muhammad Atham, ILR 56 Mad 149: (AIR 1932 Mad 720; the jurisdiction conferred by Section 144(4) of the Cr. P. C. is neither appellate nor revisional jurisdiction but a special jurisdiction conferred by a special provision of the statute and the failure to apply under Section 144(4) Cr. P. C. for the rescission or alteration of the order under Section 144 of Cr. P. C. is no bar to the filing of a revision petition against it. The preliminary objection raised by Mr. Mukherjee is disposed of accordingly.

4. In view of the order that I propose to make in this case, viz., sending back the record to the learned Sub-Divisional Magistrate to re-enter into the matter and then come to his decision one way or the other, I do not intend to enter into the merits of the case.

5. It is alleged by the first party petitioner that the Achhipore-Uluberia ferry over the river Hooghly was settled with them by the Collector of 24 Parganas at a rent of Rs. 10,700/- by an auction to ply the ferry from 6-8-58 to 20-11-59. Subsequently, the District Board 24 Parganas wanted to settle the ferry by auction on the allegation that the above noted ferry had been transferred by the State Government to the District Board. The first party challenged the right of the State Government and the District Board to hold an auction by a Mandamus petition under Article 226 of the Constitution of India before this Court and prayed for an ad interim injunction restraining the respondents from holding the said auction of the Achhipur-Uluberia ferry service on 16-12-1959 or any other subsequent date pending the hearing of the Rule and also from interfering with the petitioner's ferry service at Achhipur-Uluberia. It has been stated in paragraph 6 of the petition that on 15-12-1959 Mr. Justice Sinha issued a Civil Rule and passed an ad interim order in terms of the said prayer of the petitioner and the petitioner deposited Rs. 2080-57Np with the District Board 24 Parganasand has been continuing to deposit the money required to be deposited until the disposal of the Rule (as directed by Sinha, J).

6. Mr. Mukherjee appearing for some of the opposite parties has shown before me the certified copy of the order passed by Sub-Divisional Magistrate, Uluberia, before whom almost a similar prayer was moved by the present first party for issue of an injunction order under Section 144 of the Cr. P. C. and it has been pointed out to me that the learned Sub-Divisional Magistrate on perusal of the Police report and considering other facts and circumstances, decided that the dispute was of a Civil nature and that the remedy of the petitioner lays in Civil Court and he accordingly dismissed the petition under Section 144 of the Code of Criminal Procedure.

7. Maintenance of law and order is primarily the concern of the District Magistrate or the Sub-Divisional Magistrate, as the case may be, and the Magistrate can take certain action under Section 144 of Cr. P. C. requiring any person to abstain from a certain act if in the opinion of the learned Magistrate, there is sufficient ground for proceeding under this section and immediate prevention or a speedy remedy is desirable. This Court should be loath to interfere with the exercise of such discretion by the learned Magistrate unless it be satisfied that the order of the learned Magistrate was not legal or strictly proper. In this case the learned Sub-divisional Magistrate passed a cryptic order and it is difficult to decide from the same if he at all applied his mind on the facts of the case by referring to the relevant documents and to the surrounding circumstances. It is well settled that the order passed by the Magistrate in a proceeding under Section 144 of the Cr. P. C. is open to revision by this Court under Section 439 of the Cr. P. C. and so in passing any order, the learned Magistrate should give sufficient indications in his order in order to satisfy the mind of the revisional court that his order is based on all relevant considerations. It may be, as argued by Mr. Mukherjee, that the learned Sub-Divisional Magistrate might come to a decision adverse to the case of the first party if he looked to all the relevant papers, including the Uluberia papers, but, at least, this Court should be satisfied that he did take all these matters into consideration in passing the order that he did in the matter. I am of opinion that this matter should again go down to the learned Sub-Divisional Magistrate for him to pass an appropriate order and exercise his jurisdiction properly on a consideration of all relevant circumstances and then dispose of the matter in accordance with the law.

8. This Rule is disposed of accordingly. The order of the learned Sub-Divisional Magistrate refusing to grant the injunction is hereby set aside. The learned Sub-Divisional Magistrate should try to dispose of the matter within ten days of the arrival of the record in his Court.

9. Send the record to the court below as expeditiously as possible.


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