1. These two Rules are directed against certain orders which have been passed by the Subdivisional Magistrate of Howrah under Section 144, Criminal P. C., in connexion with the starting of a haut in the town of Howrah.
2. The facts shortly put are the following: The employers of the opposite party in these Rules, who, for the sake of brevity, will be called the Chamarias, are the owners of a haut which goes by the name of Mangla haut and which has been in existence for about ten years and holds its sittings on Tuesdays at a site on the Chandmari Road, close to the Buckland Bridge. Kanhaia Lal Memani and Lun Karan Das Memani, the petitioners in Revision Case No. 908 are partners of a firm styled Jewan Ram Ganga Ram and Co. This firm, presumably with the object of starting another haut in the locality, obtained a transfer of a lease of a plot of about 14 bighas of land which was held under the Commissioners for the Port of Calcutta by one Srilal Chamaria. This plot of land abuts on Grierson Road and is situate quite close to the site of the haut belonging to the Chamarias, being at a distance of only 600 ft. or so therefrom. On the plot of land so acquired there are, it is said, a number of permanent stalls, and on the remainder thereof the petitioners constructed a very large number of sheds and made arrangements for the sitting of a haut on Tuesday, 6th September 1982. On 2nd September 1932 two petitions were filed by the two persons who are the opposite party in these Rules--the said petitions being the exact replica of each other praying for an injunction against the two petitioners in Revision Case No. 908 and some other persons restraining them from starting the haut. These petitions were filed before the District Magistrate, who made them over to the Subdivisional Magistrate for disposal. Later on, a petition was filed by some persons alleged to be stall-holders in the Chamarias haut, asking for action being taken against the Chamarias under Section 107, Criminal P. C. The Subdivisional Magistrate made over all these petitions to a Deputy Magistrate Mr. Baruah far inquiry and report. On 5th September 1932, Mr. Baruah hold an inquiry, examined the witnesses produced by the parties and submitted a report. On that on the same day the Subdivisional Magistrate heard the parties and made an order which concluded with these words:
Having regard to the facts stated above I order an injunction under Section 144, Criminal P.C., issued against
the two petitioners in Revision Case No. 908 and some other persons to be their men being named here
restraining them from opening the proposed new haut on Tuesday, 6th September 1932, or on any subsequent Tuesday within the period of two months from this data. I consider any action under Section 107, Criminal P. C., against Radha Kisson Chamaria and others as prayed for unnecessary, as no case has been made out for such an action and it seems to be unnecessary in view of the order under Section 144, Criminal P. C., passed by me.
3. The District Magistrate was moved to rescind or alter this order under Section 144, Clause (4), Criminal P. C., but on 12th September 1932 he declined to interfere. An application was made to the Sessions Judge for a reference to this Court for revision, but it was dismissed on 23rd September 1932. It is this order under Section 144, Criminal P. C., which forms the subject-matter of Revision Case No. 908.
4. The order under Section 144, Criminal P. C., spoken of above, as drawn up, described the plot of land, on which the proposed new haut was not to be held, as lying within certain boundaries given in the schedule, the eastern boundary mentioned therein being the river Ganges. In the body of the order however the boundaries were qualified in the following way : 'Bounded as below, of which you have taken a sub-lease.' As a matter of fact Jewan Ram Ganga Ram and Co.'s sub-lease did not include a plot of land which lay immediately on the bank of the river. Treating the order as being confined to only such land as was included within the sublease, it appears to have been decided to hold a haut on Tuesday, 6th September 1932, notwithstanding the order under Section 144, Criminal P. C., mentioned above. This plot of land lying outside the sublease was fixed upon as the site and a lease thereof for a day is said to have been taken from the Commissioners for the Port of Calcutta with the object of holding a haut thereon on that day. The police, on getting information of this intention, submitted a report to the Subdivisional Magistrate who on the same day made an order under Section 144, Criminal P. C., ex parte against one Haji Fazlul Huq and others, who had taken the lease and were moving for the holding of the haut as aforesaid. Before the order was completed, advocates for the parties intervened, and at their request the order was kept in abeyance and it was decided to hold a local inspection. The Subdivisional Magistrate, accompanied by the same Police Officers and the advocates, went to the place where the new haut was being hold. What the Subdivisional Magistrate saw on the spot may better be described in his own words used in an order that he subsequently passed. He says there:
I found that a haut had been going on under a shed of the Port Commissioners on a site close to the site of the proposed rival haut (only a road intervening between them). I met an officer of the Port Commissioners there. I now find that he was Mr. Sumner, the Officiating Deputy Secretary of the Port Commissioners. He told me that the tin shed was in the khas possession of the Port Commissioners and had been leased out for that day only.
5. With the strong police force that was on the spot there was little chance of any breach of the peace ; and being of opinion that an attempt to stop the haut at that stage might to lead to trouble the Subdivisional Magistrate considered it better to let the haut go on, and left the place ordering the police to keep a watch. At the end of the day he received a report from the officer in charge of the Golabari P. S., that he had been present there with his force all day and there was no disturbance; and he therefore cancelled the order which he had made under Section 144, Criminal P. C., ex parte earlier in the day as aforesaid and which was meant for that day only. It appears that on 6th September 1932, after the Subdivisional Magistrate came back from the spot, a petition was filed before him by one of the members of the opposite party, in para. 5 of which it was stated that after the Subdivisional Magistrate had left the spot one of the stall-holders of Chamaria haut was roughly handled in the presence of the Police constables and that the matter had been brought to the notice of the Sub-Inspector who was there. It was prayed that an order under Clause (3), Section 14-4, Criminal P. C., might be issued. The Subdivisional Magistrate sent this petition to the officer in charge of the Golabari Police Station for inquiry and report with special reference to the allegation aforesaid.
6. On 10th September 1932 the said Police Officer, Mr. C.C. Majumdar submitted a report. On that date also a petition was filed on behalf of the opposite party repeating their prayer for an order under Section 14-4, Clause (3), Criminal P. C. This petition was also sent to the police for inquiry and report, and the police reported that they bad already made a report on 10th September 1932. These reports were taken up for consideration by the Subdivisional Magistrate on 12th September 1932, on which date he made an ex parte order under Section 144, Criminal P. C., against the two petitioners in Revision Case No. 907 and certain other persons and the public generally--the two petitioners being Mr. Sumner, Officiating Deputy Secretary to the Port Com, missioners and K. C. Das Gupta, Assistant Estates Superintendent of that body. The terms of this order were the following:
I hereby direct the persons' (names given) 'to abstain from allowing any land in their occupation or charge to be used for or otherwise assist in the holding of a haut and the public generally from frequenting or visiting any such haut within the boundaries noted below on Tuesday 13th September 1932, or any subsequent Tuesday within the period of two months from today.
7. Of the proceedings that subsequently took place no details need be given and it would be sufficient to say only this : that the Subdivisional Magistrate, on cause being shown has, on 23rd September 1932, refused to rescind the ex parte order, made as aforesaid, under Clause (4), Section 144, Criminal P. C. It is necessary to state only two more facts ; that when cause was shown as aforesaid the officer in charge of Golabari Police Station, Mr. C.C. Majumdar, was examined as a witness, and the opposite party declined to call any other witness on their behalf; and that as a result of the application made to him under Clause (4), Section 144, Criminal P. C., the Subdivisional Magistrate ordered the injunction issued by him on 12th September 1932 to run as from 5th September 1932, treating it as only supplementary to the injunction issued by him on the last mentioned date. It is the order of 12th September 1932 issuing the injunction under Section 144, Criminal P. C., and that of 23rd September 1932 by which the Sub-divisional Magistrate refused to rescind it, that form the subject-matter of Revision Case No. 907. Now there can be no doubt or dispute that the legislature by Section 144 of the Code has conferred very large powers upon Magistrates who have to deal with urgent cases of nuisance or apprehended danger. That section enables a Magistrate to make temporary orders, irrespective of the rights of the parties concerned, provided that, to quote the words of the section:
In his opinion ... there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable.
8. The larger is be power, the greater is the necessity to be cautious about its exercise. The statute itself has provided a safeguard in the shape of a time limit. Judicial decisions have also laid down certain principles which have to be borne in mind, and of these only a few may be mentioned here : Courts, civil as well as criminal, exist for the protection of rights, and therefore the authority of a Magistrate should ordinarily be exercised in defence of rights rather than in their suppression ; when an order in suppression of lawful rights have to be made it ought not to be made unless the Magistrate considers that other action that he is competent to take is not likely to be effective ; and the order, if made, should never be disproportionate to but should always be, as far as possible, commensurate with the exigencies of any particular situation. I am far from suggesting that there may not be cases when the Magistrate may feel called upon to restrain a person from the lawful exercise of his legal rights ; he is perfectly competent to take such a course under this section if, to quote the words of the section again:
in his opinion there is sufficient ground for proceeding under this section and immediate prevention or speedy comedy is desirable.
9. The amendment introduced by the Act of 1923, by deleting Sub-section (3) from Section 435 which till them existed, has made the order of the Magistrate open to revision. This Court therefore on the present rules has to consider whether the power which the Sub-divisional Magistrate undoubtedly has in this respect has been rightly exercised ; or, in other words, whether there were sufficient materials which would justify him in making the orders that he did. As a Court of revision this Court has to consider not merely the legality of the orders but their propriety as well : vide Section 435, Criminal P. C. As already stated, the Magistrate was not bound to maintain the rights of the parties, if the situation was such that such rights required to be suppressed, or their exercise restrained for the time being.
10. So far as the rights are concerned the law is perfectly well settled. In Bengal there is no such thing as a market franchise or the right to hold a market conferred by grant from the Crown, nor can such right be acquired by prescription and the proprietor of an old haut therefore has no monopoly or privilege which is entitled to protection and no immunity from competition : see Hem Chandra Roy v. Kristo Chandra A I R 1920 Cal 255. In En-gland, notwithstanding the repeal of the Combination Laws the idea of regarding, a conspiracy to impede the free course of trade as a criminal offence at Common law, which to some extent prevailed in the 18th century, continued to hold its ground, being regarded as a part of the more general principle that a conspiracy to injure, aimed at a specific person, could give rise to an action at the suit of the injured party, even though the acts of the individual conspirators were neither criminal nor tortious : see Quinn v. Leatham (1901) A C 495 at p 510 and the cases cited in the judgment of Lord Macnaghten in that case. In the more recent decision of the House of Lords in the case of Sorrel v. Smith (1925) A C 700 which aimed at reconciling or explaining all the earlier decisions the following proposition has been enunciated:
A combination of two or more persons for the purpose of injuring a man in his trade is unlawful, and if it results in damage to him, is actionable. If the real purpose of the combination is not to injure another, but to forward or defend the trade of those who enter into it then no wrong is committed and no action will lie although damage to another ensues, provided the purpose is not effected by illegal means. A threat to effect a purpose which is in itself lawful gives no right to the person injured there-by.
11. The question to be considered is, do the materials on which the learned Magistrate acted afford sufficient grounds; within the meaning of the expression as, used in Section 144 of the Code. So far as the order of 5th September 1932 is concerned these materials are the petitions of the two parties and the report of the Deputy Magistrate Mr. Barua, that he had then before him. In this connexion a question has arisen as to whether it is competent for a Magistrate, who has to make an order under Section 144 of the Code to depute another Magistrate to make an inquiry and submit a report and then to act on the report so submitted. The legislature not having defined the materials on which the Magistrate may take action under Section 144 of the Code I think it must be held that the Magistrate would be competent to act on any credible information that may be available or which he may consider it proper to collect in any manner he chooses. So long as he applies his mind to the materials which are before him or which he may care to gather and comes to his own conclusion as to their sufficiency or otherwise, I do not think his action can be open to objection. It is true that so far as an order under Ch. 11 of the Code is concerned the legislature has not made any express provision for an inquiry by any other Magistrate, and it is also true that Section 148 of the Code makes the report of an inquiry, held for the purposes of Ch. 12 only, usable as evidence in the case.
12. The provision in Section 148 evidently has been made in view of the inquiry contemplated by Sub-section (4), Section 145 of the Code; and an omission of an express provision as to inquiry for the purposes of Ch. 11 can, in my opinion, hardly be regarded as forbidding the Magistrate from having one made for the collection of materials, in order to enable him to form his own conclusions. I am prepared to agree with the contention that the Magistrate who is to make the order is not competent to delegate his functions to some other Magistrate; but so long as the inquiry is limited to the purpose indicated above it cannot be said that there is any delegation in the real sense of the word. So far as the materials themselves are concerned, I am clearly of opinion that they were not sufficient. (After considering the evidence, the judgment proceeded). They cannot, in my opinion, suffice, in view of the circumstances of this particular case, to justify an order of the kind that was made on 6th September 1932. It is true that there were allegations before the Subdivisional Magistrate, as also before Mr. Barua, that there was apprehension of a breach of the peace proceeding from the side of the Chamarias. But such allegations evidently were not established. The Subdivisional Magistrate, as would appear from the portion of his order quoted above, held that no case had been made out for action against them under Section 107. He added:
And it (i. e., action under Section 107) seems to be unnecessary in view of the order under Section 144, Criminal P. C., passed by me.
13. Of course if anything had been proved showing that it was the Chamarias or their men who were guilty of any unlawful acts it is hardly likely that the Magistrate would have thought of stopping the holding of the proposed haut, and not any action against them under Section 107 of the Code as the remedy. So far as the order of 12th September 1932 is concerned, in addition to the materials to which reference has already been made, there was the allegation about a stall-holder of Chamaria's haut having been roughly handled by somebody interested in the setting up of the new haut. As already stated this matter was referred to the Officer in charge of the Golabari Police Station for inquiry and report. This officer submitted his report on 10th September 1910, and his endorsement on the petition forwarded to him shows that he held the necessary inquiry. Curiously enough his report of that date does not refer to this incident at all, and in his evidence he says:
I never saw the man who made the complaint. I heard of the incident of the 6th.
14. The entry which is said to have been made in the police diary as regards this incident was not proved before the Court, nor was the officer who recorded it produced for examination. Before us it is said that the complainant stallholder has been gained over, and no reliance is any longer placed on this incident. The only other material which has any bearing on the order of 12th September 1932 is the police report of 10th September 1932 which contains no facts beyond a statement of the circumstances which had weighed with the Subdivisional Magistrate in making his order of 6th September 1932. I should not omit to refer to the fact, upon which very great reliance has been placed in support of the order, namely, that the Subdivisional Magistrate had himself visited the new haut when it was being held on the 6th. No doubt his opinion formed on the spot is not a thing to be lightly passed over. But it should be remembered that it was the new haut that he visited where any disturbance of it was to take place at all, could take place only at the instance of the men of the Chamarias, and further that in point of fact there was no disturbance in that haut at all. Nor should it be forgotten that in the order that he recorded on that day, no facts were mentioned which could form the basis of an order under Section 144, Criminal P. C., and on the other hand he cancelled the injunction he had ordered for the day, and waited for a police report to see whether any further action should be taken. I am unable to hold that there were any materials sufficient for the purposes of the order of 12th September 1932.
15. In the view that I take of the merits I do not consider it necessary to deal in detail with the other grounds that have been urged against the latter order. But I think I should content myself with observing that if action under Section 144 of the Code was justified, it was quits open to the Magistrate to make the order upon the two petitioners in revision Case No. 907, notwithstanding anything contained in the Calcutta Port Act, if in point of fact it was found, as it has been found, that they were persons who were aiding in the setting up of the haut. In my opinion the materials on the record were not sufficient to justify the orders complained of and the orders therefore must be set aside. The rules are accordingly made absolute and the orders against which they are directed are hereby set aside. It will be open to the learned Subdivisional Magistrate to take such other preventive action against the parties or any of them, should he consider such action necessary and justified upon the materials that he may have before him. And in this connexion we desire to invite his attention to the suggestion made by the learned Sessions Judge in this matter in his order of 23rd September 1932.
16. I agree.