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Khwairakpara Hingthemjao Singh and ors. Vs. Loupu Kom and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGuwahati High Court
Decided On
Judge
Reported in1961CriLJ650
AppellantKhwairakpara Hingthemjao Singh and ors.
RespondentLoupu Kom and ors.
Excerpt:
- .....forcibly harvested 3 paris of land, out of the 15 paris, the land involved being the same as the land in criminal case no. 5-c of 1959 before the s.d.m., churachandpur,this was registered as criminal case no. 8 of 1959-60. in the petition loupu kom never made any reference to the order under section 145 cr. p.c. passed by the s.d.m., churachandpur in criminal case no. 5-c of 1959 only a few days previously. instead reference was made to some order passed by the e. a. c. (revenue) in misc. case no. 3 of 1958, and it was stated that the present petitioners were acting in violation of the said order.3. the s.d.m. bishenpur started proceedings under section 145 and loupu kom was examined. in his statement, loupu kom suppressed the fact of the order passed on 14-11-1959 by the s.d.m......
Judgment:
ORDER

T.N.R. Tirumalpad, J.

1. The petitioners herein filed a petition under Section 144 Cr. P.C. before the A. D. M. on 13-7-1959, for restraining the respondents from interfering with the possession of a certain land in Saiton village which is on the boundary between the Churadhandpur sub-division and Bishenpur sub-division. The A. D. M. transferred the case to the Court of the S.D.M., Churachandpur for disposal and the latter proceeded under Section 145 Cr. P.C. in Criminal Case No. 5-C of 1959. He started proceedings by passing a preliminary order on 24-8-1959, and he directed the land to be kept under attachment.

Thereafter notices were issued to both the parties. It is seen from the records that one of the respondents Loupa Kom of Mantha Khunou appeared before the Magistrate, No affidavits appear to have been taken from the parties. Instead, the Magistrate examined one of the petitioners and Loupu Kom for the respondents and he passed an order on 14-11-1959 holding that the petitioners were in possession of the lands and directing the respondents who were 12 in number to refrain from interfering with the said possession.

2. Thereafter on 2-12-1959, Loupu Kom, Kula Singh and Angahal Singh among the respondents whose nameg were mentioned in the Petition on behalf of themselves and 9 other persons (whose names were not so mentioned) of Watha Lambel village as the first party filed a petition under Section 145 Cr. P.C. in the Court of the S.D.M., Bishenpur against the petitioners herein of whom 6 persons alone were mentioned by name.

It was also mentioned that 14 Persons of Ring-thoukhong Kha Khunou village were the second party. The petition itself was signed only by Loupu Kom and Kula Singh, among the respondents. The petition mentioned that on 1-12-1959 the second party forcibly harvested 3 Paris of land, out of the 15 paris, the land involved being the same as the land in Criminal Case No. 5-C of 1959 before the S.D.M., Churachandpur,

This was registered as Criminal Case No. 8 of 1959-60. In the petition Loupu Kom never made any reference to the order under Section 145 Cr. P.C. passed by the S.D.M., Churachandpur in Criminal Case No. 5-C of 1959 only a few days previously. Instead reference was made to some order passed by the E. A. C. (Revenue) in Misc. Case No. 3 of 1958, and it was stated that the present petitioners were acting in violation of the said order.

3. The S.D.M. Bishenpur started proceedings under Section 145 and Loupu Kom was examined. In his statement, Loupu Kom suppressed the fact of the order passed on 14-11-1959 by the S.D.M. Churachandpur. The S. D. M-, Bishenpur thereupon Passed a preliminary order on 2-12-1959 itself and he directed the land to be kept under attachment and further ordered that the standing crops should be harvested by both parties in the presence of the police and the produce kept in the custody of the village Chowkidar.

The petitioners herein then appeared before the S.D.M. Bishenpur on 19-1-1960, through counsel and filed written statement pointing out that the S.D.M., Churachandpur had found them to be in possession of the land in proceedings under Section 145 Cr. P.C. and they also produced a copy of the order. Then the S.D.M., Bishenpur adjourned the case to 12r2-1960, at the request of the respondents and on 12-2-1960, the respondents also filed their written statement.

In their written statement no reference at all was made to the order passed by the S.D.M., Churachandpur on 14-11-1959, even though Loupu Kom who had signed the written statement and had filed affidavit was examined in Criminal Case No. 5-C of 1959 before the S.D.M., Cburachandpur and therefore had full knowledge of the order passed by the said S.D.M. The S.D.M., Bishenpur then posted the case for arguments to 9-3-1960. Thereupon the petitioners have come to this Court requesting that the proceedings before the S.D.M., Bishenpur in Criminal Case No. 8 of 1959-60 should be quashed under Section 561-A Cr. P.C.

4. It was first argued for the Petitioners that the S.D.M., Bishenpur had no jurisdiction to entertain the petition as the disputed land in the village of Saiton was said to be within the jurisdiction of S.D.M., Churachandpur. In support of that argument the list of Hill villages under the Notification dated 20-7-1956 issued by the ManiPur Administration was brought to my notice.

But that was a list prepared under Section 2 of the Manipur (Courts) Act, 1955. That list no doubt showed Saiton village to be a Hill village within the Churachandpur sub-division. But that list was prepared only for the purpose of deciding the Civil Jurisdiction and may not strictly apply to the Criminal Jurisdiction of the Sub-Divisional Magistrates. A report was called for from the A. D. M., regarding the respective criminal jurisdictions of the Sub-Divisional Magistrate of Bishenpur and Churachandpur.

The A. D. M. has reported that Saiton village was a boundary village and the S.D.M., Bishenpur was claiming jurisdiction as far as this land was concerned, though house-tax was being collected by the S.D.M., Churachandpur treating Saiton as a Hill village. Thus, the position has not been clarified by the A. D. M. in his report. It is for the Manipur Administration to clarify this matter and it is not for me to decide the respective jurisdictions of the two Sub-Divisional Magistrates. Hence I am not going to decide this case on the ground of lack of jurisdiction of the S.D.M., Bishenpur.

5. What was next argued for the petitioners was that the S.D.M., Churachandpur, after the transfer of the case to him by the A. D. M. having found the petitioners to be in possession of the disputed land as late as 14-11-1959, the S.D. M., Bishenpur had no jurisdiction to proceed under Section 145, Cr. P.C. or to pass a preliminary order. It was further pointed out that Loupu Kom, respondent No. 1 was bound by the order of the S. D'. M. Churachandpur and that it was an abase of the process of Court on his part to have initiated the proceedings before the S, D. M., Bishenjjw.

6. I am quite satisfied that this argument of the petitioner is quite valid and must be accepted. I sent for the record in Criminal Case No. 5-C of 1959, on the file of the S.D.M., Churachandpur. An inspection of the said record showed that the attachment of the land in the said proceedings was effected in the presence of the petitioners and respondents. It was also found that the preliminary order was served on Loupu Kom and that he appeared before the Magistrate and that his evidence was recorded before the order was passed. It was further found that the attachment order was affixed in a conspicuous place in the disputed land.

7. It was however argued for the respondents that even though Loupu Kom may have been, served in the proceedings, personal service was not effected on the remaining respondents as required under Sections 134 and 69 to 73 Cr. P. C and that any order passed by the S.D.M., Churachaiidpur on the remaining respondents will not be binding upon them and can be ignored by them and therefore even though Loupu Kom may not be able to start the fresh proceedings before the S.D.M. Bishenpur, the remaining respondents were fully entitled to initiate the proceedings.

It was suggested for the respondents that Loupu Kom's name may be directed to be struck off as he was bound by the order of the S.D.M., Churachandpur and that the proceedings may be allowed to be continued by the remaining respondents. It was also pointed out that the petitioners ought to have urged this matter before the S. D. M, Bishenpur instead of rushing to this Court and that the S.D.M., Bishenpur would have dealt with the matter before proceeding further in the matter.

8. I find myself unable to agree with the above contentions for the respondents. It is seen that Loupu Kom contested the proceedings in Criminal Case No. 5-C of 1959, on behalf of all the respondents. When an order is passed by the S.D.M., Churachandpur, against all the respondents directing them not to interfere with the possession of the petitioners until they were evicted therefrom by due process of law, that order is binding on all the respondents and cannot be ignored by them.

As to whether the respondents were all properly served in the said proceedings is a question of fact. If it is their plea that they were not properly served, it is for them to take appropriate steps to vacate the order of the S.D.M., Churachandpur on the ground that it was an illegal order and was passed without jurisdiction. Until it is so vacated, the order stands and is in force against the respondents and it cannot be simply ignored by them. The very plea that the respondents can ignore the said order, betrays that they were aware of the said order and deliberately chose to ignore it.

9. I have already stated that the proceedings in Criminal Case No. 5-C of 1959, showed that the attachment was effected in the Presence of both the parties. Since, tie dispute is about the land, attachment of the land by the S.D.M., Chura chandpur must have brought the knowledge of the proceedings to all the respondents. Further, it is clear that Loupu Kom was acting as the leader of the respondent's party and Loupu Kom was certainly aware of the said proceedings and also of the order passed therein.

If we turn to Criminal Misc. Case No. 8 of 1959-60 we see again that the petition under Section 145 was filed by 'Loupu Kom and Kula Singh and one Angahal Singh etc. 12 persons of Watha Lambel village'. Thus, the names of all the respondents were not given in. the petition. The petition was signed only by Loupu Kom and Kula Singh. The statement before the Magistrate was given by Loupu Kom himself. The written statement on behalf of the first party was again signed on behalf (sic) by Loupu Kom, Kula Singh and Angahal Singh, while the affidavit was given by Loupu Kom thereby making it clear that Loupu Kom was acting on behalf of the respondents. The other respondents who were being represented by Loupu Kom as leader must have knowledge of the order.

10. It is clear therefore that the' initiation of the Proceedings in Criminal Case No. 8 of 1959-60 before the S.D.M. Bishenpur by the respondents with full knowledge of the prior order is a flagrant abuse of the process of Court. The possession of the petitioners having been already found by the S.D.M., Churachandpur on 14-11-1959, the statement in the petition filed by Loupu Kom that the petitioners forcibly harvested 3 paris of land and carried away the crops and threatened the respondents with violence was false to the knowledge of Loupu Kom as the petitioners had every right to be in possession and to harvest the crops. The said proceedings cannot therefore be allowed to continue. It is necessary in the interests of justice and to prevent the abuse of the process of Court to quash the proceedings in Criminal Misc. Case No. 8 of 1959-60 before the S.D.M., Bishenpur.

11. I am not at all satisfied in this case with the manner in which the S.D.M., Bishenpur started the proceedings under Section 145 Cr. P.C. I have impressed upon the Magistrates more than one that they must not make use of the provisions of the Cr. P.C. like Sections 144, 145, 147 etc. unless they are satisfied that a breach of the peace in respect of dispute relating to land is imminent. This S.D.M., Bishenpur, seems to have dealt with this matter in a very light hearted fashion.

Loupu Kom appeared before him and gave a statement that in Misc. Matter No. 3 of 1958, the E. A. C. had passed an order on 23-11-1959, allowing his party and the second party to harvest the field at Watha Lambel and to divide the produce between the two parties in the petition. This very statement must have shown to the S.D.M. that the 1st party had no exclusive possession of the land and that the second party were in joint possession. Then how could he start proceedings under Section 145 Cr. P.C. against the 2nd party? It was also the duty of the learned Magistrate to have insisted on the production of the said order before he initiated the proceedings and not relied on the oral statement of Loupu Kom.

At least, it was easy for him to find out whether any such order was in existence. Mere oral statement in respect of such orders should never have been accepted by the Magistrate to initiate such serious proceedings, No such Order was produced by the first party even in the later stages of the proceedings, thereby showing that the statement of Loupu Kom regarding the order in the Misc. Matter No. 3 of 1958, was false.

It is the duty of the Courts to satisfy themselves properly before such serious proceedings are started. Otherwise, as in the present ease any person may come forward with such a petition before a Magistrate and make some statement on oath and get favourable orders seriously interfering with the legitimate rights of persons whose possession has been declared by Courts'. The Magistrate will do well to take the necessary steps against this Loupu Kom for making such deliberate false statement.

12. The petition is, therefore allowed and the proceedings in Criminal Misc. Case No. 8 of 1959-60 before the S.D.M., Bishenpur are quashed.


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