Ram Pratap Narain Singh v. State of Bihar — 1986 DIGILAW 172 (PAT)

JUDGMENT : C.N. TIWARY, J. 1. This is an application for quashing the ORDER :dated 22.3.1976 (Annexure 3) passed by the Sub-divisional Magistrate, Begusarai, in a proceeding under section 144 of the Code of Criminal Procedure. 2. Opposite Party No. 1 is the State of Bihar and opposite party no. 2 is the Officer-in-charge, G.R.P. Barauni Junction Railway. Opposite party no. 3 is Prabhat Kumar Mukherjee, Field Officer and Opposite party no. 4, is S.M. Ahmad, Manager of M/s. A.H. Wheeler and Company Pvt. Ltd., 15 Lal Bahadur Shastri Marg, Allahabad (hereinafter referred to as the Company). The Company is engaged in carrying on the business of Railway book stalls at different Railway stations throughout India. The Company has three book stalls located on different platforms at Barauni junction Railway station. 3. The case of the petitioner is that in the month of June, 1968, the Company appointed the petitioner as its Commission Agent with respect to the aforesaid three book stalls at Barauni Junction Railway station and since then the petitioner has been in exclusive physical possession of the disputed book stalls and trollies at Barauni Junction Railway station. It is said that the officers and staff of the Company in ORDER :to have illegal gain wanted to appoint new agent and therefore started threatening and harassing the petitioner so that the petitioner might give up possession of the stalls. On 29.2.1976, at 11.30 hours, opposite party no. 3 lodged an information with the Barauni G.R.P. to the effect that the agency of the petitioner was terminated on 9.1.1976, but he refused to hand over charge to the Company and as such, there was an apprehension of breach of the peace. On the same day, at 12.30 hours, the petitioner also lodged an information with the Barauni G.R.P. that Opposite party nos. 3 and 4 long with 9 and 10 other persons had called his son Awadhesh Kumar Sinha in the retiring room and held out a threat to him that the possession of the book stalls would be taken by them forcibly. The police was requested to take appropriate action. The information lodged by opposite party no. 3 was entered as Station Diary Entry no. 755 and the information lodged by the petitioner was entered as Station Diary Entry no. 578 dated 29.2.1976. The police was requested to take appropriate action. The information lodged by opposite party no. 3 was entered as Station Diary Entry no. 755 and the information lodged by the petitioner was entered as Station Diary Entry no. 578 dated 29.2.1976. On 3.3.1976, the Sub-Inspector of Police of Barauni G.R.P. submitted a report to the Sub-divisional Magistrate, Begusarai for action under section 144 of the Code of Criminal Procedure (hereinafter referred to as the Code) against both the parties. On receipt of the police report, the Sub-divisional Magistrate, by his ORDER :dated 4.3.1976 drew up a proceeding under section 144 of the Code against both the parties restraining them from going upon the disputed book stalls and requiring them to show cause as to why rule should not be made absolute against them. Opposite party no. 3 Prabhat Kumar Mukherjee and Opposite party no. 4, S.M. Ahmad were made first party and petitioner Ram Pratap Narain Singh was made second party in the proceeding. 4. Parties filed their show cause before the Sub-divisional Magistrate. In the show cause filed on behalf of the first party, it was stated that the agency of the petitioner had been terminated by the Company on 9.1.1976 and a new agent Shri B.K. Tiwary had been appointed. Further contention of the first party was that the possession of the second party-petitioner was that of a permissive character and that in the event of this being revoked the possession would be deemed automatically to be transferred in favour of the company. 5. The second party-petitioner stated in his show cause that he was in actual physical possession of the subject-matter of dispute and that a Civil Suit no. 19 of 1976 filed by the Company in the court of the Civil Judge, Allahabad, against the petitioner for recovery of possession of the subject-matter of dispute was pending and therefore, the provision of section 144 of the Code could not be invoked. 6. The learned Sub-divisional Magistrate after hearing the parties passed the impugned ORDER :on 22.3.1976, the relevant portion of which runs thus:– "I partially agree with the contentions of both the parties and come to the following conclusions:– 1. Pendency of the civil suit is no bar for initiating the proceeding under sections 144 or 145 of the Cr. P.C. 2. The learned Sub-divisional Magistrate after hearing the parties passed the impugned ORDER :on 22.3.1976, the relevant portion of which runs thus:– "I partially agree with the contentions of both the parties and come to the following conclusions:– 1. Pendency of the civil suit is no bar for initiating the proceeding under sections 144 or 145 of the Cr. P.C. 2. Possession of an agent is only permissive possession and the principal is in actual possession of the property. 3. Book stalls are situated on the platform at fixed place. Therefore, a stall is an immovable property, and not movable one. Therefore, proceeding under section 144/145 of the Cr. P.C. can be started in respect of the Book stalls. 4. The second party cannot be directed by this Court to hand over the accounts of books to the first party. But any party can be restrained from going on to the stalls. Since the second party is only an agent of the first party, the first party will be deemed to be in possession of the stalls through the second party. Once the agency of the second party is terminated, the first party will be deemed to be in possession of the stalls independently. The ORDER :under section 144 of the Cr. P.C. is vacated against the first party and made absolute against the second party. The O/c G.R.P. is directed to comply with the ORDER :s. The O/c G.R.P. has reported that both the parties were restrained from going on the stalls and the stalls were run by other persons. This amounts to the compliance of the ORDER :of the court dated 4.3.1976 in letters but not in spirit. This is surprising law a third party who is not authorised either by railways or by the company to run the stalls at railway junction is actually running the stalls. The O/c G.R.P. is directed to comply with this ORDER :both in letter as well as in sprit. Send a copy of the last para of the ORDER :to the S.R.P. concerned." 7. Mr. The O/c G.R.P. is directed to comply with this ORDER :both in letter as well as in sprit. Send a copy of the last para of the ORDER :to the S.R.P. concerned." 7. Mr. Prabha Shankar Mishra, learned Counsel for the petitioner has urged that in a proceeding under section 144 of the Code, the learned Magistrate had no jurisdiction to decide the question of possession and hold that the possession of the agent, namely, the petitioner is permissive and the principal, namely, the opposite party is in actual possession of the book stalls. He has further contended that after vacating the preliminary ORDER :passed under section 144 of the Code against the first party and making it absolute against the second party, the learned Magistrate had no jurisdiction to direct the Officer-in-charge. G.R.P. to comply with his direction both in letter as well as in sprit inasmuch as it amounted to a direction to the police to evict the petitioner from the bookstalls and put the first party in possession thereof. The impugned ORDER :has been challenged as without jurisdiction on these grounds. 8. The argument of Mr. Nageshwar Prasad, learned Counsel for the opposite party is that the learned Magistrate had jurisdiction to pass the preliminary ORDER :dated 4.3.1976 in the proceeding under section 144 of the Code restraining both the parties from going on the book stalls and that after hearing the parties, the learned Magistrate had jurisdiction to pass the impugned ORDER :making the preliminary ORDER :absolute against the second party and vacating the and against the first party. Mr. Prasad contends that the direction issued to the Officer-in-charge G.R.P. was only to the effect that the ORDER :of the learned Magistrate making the preliminary ORDER :absolute against the second party should be complied with and it was onto the effect that one party should be evicted by the police and the other party should be put in possession of the book stalls. The circumstances under which the aforesaid direction was issued to the G.R.P. are these. As stated above, by a preliminary ORDER :dated 4.3.1976, both the parties had been restrained from going over the book stalls. On 11.3.1976, a petition was filed on behalf of the first party before the learned Magistrate stating that in spite of the service of the preliminary ORDER :dated 4.3.1976, the second party was selling books, magazines etc. As stated above, by a preliminary ORDER :dated 4.3.1976, both the parties had been restrained from going over the book stalls. On 11.3.1976, a petition was filed on behalf of the first party before the learned Magistrate stating that in spite of the service of the preliminary ORDER :dated 4.3.1976, the second party was selling books, magazines etc. at the disputed book stalls through himself and his men. The learned Magistrate called for a report from the police in this regard. The police submitted a report dated 14.3.1976 to the effect that the second party Ram Pratap Narain Singh himself had not visited the stalls after the service of the preliminary ORDER :, but his men, who were not party to the proceeding, were regularly going to the stalls and selling books, magazines etc. It was for this reason that the learned Magistrate observed as pointed out above:– "The O/c G.R.P. has reported that both the parties were restrained from going on the stalls and the stalls were run by other persons. This amounts to the compliance of the ORDER :of the court dated 4.3.1976 in letter but not in spirit. This is surprising how a third party who is not authorised either by railways or by the Company to run the stalls at railway junction is actually running the stalls. The O/c G.R.P. is directed to comply with this ORDER :both in letter as well as in spirit." 9. Thus, it is evident that the direction of the learned Magistrate to the Officer-in-charge G.R.P. was to the effect that the police should see that the temporary ORDER :passed under section 144 of the Code restraining the second party from going over the stalls should be complied with both in letter as well as in spirit. This observation of the learned Magistrate does not amount to an ORDER :directing the place to evict one party and put the other party in possession of the disputed stalls. 10. Mr. Mishra contends that the direction of the learned Magistrate to the G.R.P. to see that the ORDER :making rule absolute against the second party was complied with is also without jurisdiction. I am unable to accept this contention. Section 144 of the Code confers wide power to pass an ORDER :on emergency occasion. 10. Mr. Mishra contends that the direction of the learned Magistrate to the G.R.P. to see that the ORDER :making rule absolute against the second party was complied with is also without jurisdiction. I am unable to accept this contention. Section 144 of the Code confers wide power to pass an ORDER :on emergency occasion. The ORDER :must either direct a person to abstain from a certain act or to take certain ORDER :with certain property in his possession or under his management. Such direction can be given only in three cases specified, namely, to prevent (i) obstruction, annoyance and injury to any person lawfully employed, or (ii) danger to human life, health or safety or (iii) disturb the public tranquility or a riot or an affray. In the instant case, there was serious apprehension of breach of the peace as it appears from the preliminary ORDER :dated 4.3.1976. The ORDER :restraining the second party from going over the stalls had been made absolute in ORDER :to prevent disturbance of public tranquility or breach of the peace. It is true that the disobedience of the ORDER :under section 144 of the Code is punishable under section 188 of the Indian Penal Code, but a Magistrate himself cannot take cognizance when the offence is disobedience of an ORDER :of his own court. He has to make a complaint as required by section 195 of the Code. The Sub-divisional Magistrate is incharge of law and ORDER :. Does his responsibility to maintain law and ORDER :end with the mere passing of an ORDER :restraining the parties from going over the disputed land? In ORDER :to prevent immediate breach of the peace, he has to see that the ORDER :is obeyed. The prosecution under section 188 of the Indian Penal Code for disobedience of the ORDER :under section 144 of the Code has nothing to do with the immediate apprehension of breach of the peace. Hence, the direction of the learned Magistrate to the Officer-in-charge G.R.P. to see that the temporary ORDER :passed under section 144 of the Code was complied with was perfectly justified and it was in this way that breach of the peace at the railway platform could have been prevented. 11. The next argument of Mr. Hence, the direction of the learned Magistrate to the Officer-in-charge G.R.P. to see that the temporary ORDER :passed under section 144 of the Code was complied with was perfectly justified and it was in this way that breach of the peace at the railway platform could have been prevented. 11. The next argument of Mr. Prasad, which also appears to be well founded, is that the learned Magistrate while giving reasons in support of the ORDER :making the rule absolute against the second party observed that the first party would be deemed to be in possession of the stalls through the second party and that the learned Magistrate did not decide the question of possession or ownership. Mr. Prasad has further submitted that the principle of law stated by the learned Magistrate that master is in possession through his agent or servant is quite correct. He has relied upon the following observations of Fazl Ali, J. who delivered the JUDGMENT : of the Court in Puran Singh vs. State of Punjab, AIR 1975 Supreme Court, 1674:– "Similarly an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession." In Balak Das vs. Bhagwan Das alias Bhagwan Bhagat, AIR 1960 Patna, 60, which has also been relied upon by Mr. Prasad, it has been held that possession of an agent or a servant, which is permissive, cannot give him a locus standi as against the principal or master in a proceeding under section 145 of the Code. It has further been held in that case that the possession that can be pleaded in a proceeding under section 145 of the Code must be possession based on a claim of right to possession and that the principal or master is in possession through his agent or servant. If in a proceeding under section 145 of the Code between the principal and his agent, the principal can be held to be in possession through his agent or servant, there is no reason why a preliminary ORDER :restraining the parties from going over the disputed property should not be made absolute against the agent and vacated against the principal on that principle. 12. 12. It is true that in a proceeding under section 144 of the Code, the Magistrate has no jurisdiction to adjudicate upon the rights or to decide the question of title or possession by usurping the functions of a civil court. It is also not permissible for the Magistrate under the cover of an ORDER :under section 144 of the Code to dispossess one party from the disputed property and to deliver the possession of the same to the other party. But, as pointed out above, the direction of the learned Magistrate to the police was only to the effect that the temporary ORDER :passed under section 144 of the Code should be complied with strictly. It was not an ORDER :of permanent nature nor was it an ORDER :s for eviction of second party from the book stalls nor an ORDER :for putting the first party in possession. What the learned Magistrate did was that he made the rule absolute against the second party and vacated it against the first party. This means that the temporary ORDER :restraining the second party from going over the disputed stalls was confirmed and in justification of his ORDER :the learned Magistrate observed that the first should be deemed to be in possession of the stalls through the second party. It was not a direction to the police to evict the second party or put the first party in possession of the stalls. Having stated the legal position that possession of an agent is only permissive possession and the principal is in actual possession of the property, the learned Magistrate, in view of the scope of section 144 of the Code, under which he was passing the impugned ORDER :hastened to add that the second party (petitioner) could not be directed to hand over account books to the first party but he could be retrained from going over the stalls. These observations of the learned Magistrate clearly show that he has not decided any question of possession or ownership. In this view of the matter, it seems unnecessary to refer to the decisions cited by Mr. Mishra. But while I was dictating the JUDGMENT : in open Court, Mr. Mishra made a grievance that I did not refer to the cases relied upon by him. 13. Much reliance has been placed by Mr. Mishra on the decision Muzaffarpur Electric Supply Co. Mishra. But while I was dictating the JUDGMENT : in open Court, Mr. Mishra made a grievance that I did not refer to the cases relied upon by him. 13. Much reliance has been placed by Mr. Mishra on the decision Muzaffarpur Electric Supply Co. Ltd. vs. State of Bihar, 1973 Criminal Law Journal, 143. It was an application filed by the Muzaffarpur Electric Supply Co. under Articles 226 and 227 of the Constitution. The amount of dues of the Electric Supply Co. against the Muzaffarpur Municipality had swollen to about Rupees four lacs. The Electric Supply Co. served a notice under Section 24 of the Indian Electricity Act on Muzaffarpur Municipality. Just thereafter a proceeding under section 144 of the Code was started against the Resident Engineer and the Director of the Electric Supply Co. and a preliminary ORDER :restraining them from disconnecting the supply of electric energy to the Muzaffarpur Water Supply and street light was passed and they were further directed to restore electric energy if disconnected. Thus it is evident that it was a positive direction to a party to restore electric energy if it had been disconnected. It was observed in that case as follows:– "Any ORDER :under section 144, whether it directs a party to abstain from a certain act or to take certain ORDER :with certain property in his possession etc. must be of a temporary character, which means that it must not be irrevocable in its nature or partake of the character of a perpetual in junction." As pointed out above, in the instant case, a temporary ORDER :restraining the second party from going over the stalls had been passed by the learned Magistrate and it is not a positive direction to the second party to deliver possession of the stalls to the first party. It also does not partake of the character of a perpetual injunction. Thus, in view of the observations made above, this decision has no application to the facts of the present case. 14. In Ramanlal Bhogilal Patel vs. N.H. Sethna, 1971 Criminal Law Journal, 435, the ORDER :passed under section 144 directed that the petitioner (one of the parties to the proceeding) should not enter or reside in or do or cause to be done any act either by speech or by conduct, which would cause incitement with in the area specified in the schedule. Bhagwati, C.J. (as he then was) observed:– "It is apparent in a plain grammatical construction that under the first part of the section a person can be directed only to abstain from a certain act. The direction can be only negative in character. No positive act can be directed to be done under this provision. Now so far as the direction contained in the impugned ORDER :is concerned, it is of a two fold nature. The first part of the direction says that the petitioner shall not enter or reside in the specified area. The case of the petitioner is that he is residing in the specified area, and this case has not been disputed on behalf of the Commissioner The effect of this direction, therefore is that the petitioner would have to leave the specified area and go out of it. It is, no doubt, true that the direction is negative in form inasmuch as it directs the petitioner not to enter or reside in the specified area but in ORDER :to determine whether the direction is within the power conferred on the Commissioner under the section we must have regard to the substance of the direction and not the form. If we look at the substance of the direction, it is clear that it directs the petitioner to do a positive act, namely, to remove himself from the specific area. This is something which is not permissible on the plain terms of section 144, sub-section (1)." In the instant case, no such positive direction has been given to the second party petitioner. He has simply been directed to abstain from going over the disputed stalls and as such the impugned ORDER :is not a bad ORDER :according to this decision. 15. In Gokhul Singh vs. Jagdish Singh, 1963 BLJR 211 Sahai, J. observed:– "When there is an ORDER :under section 144, prohibiting parties from going upon the disputed lands, and a person dishonestly cuts and removes crops from that land he dishonestly takes the crops out of the possession of the party who may be held to have grown the crops before the ORDER :under section 144 was passed." As has already been pointed out, the learned Magistrate in the instant case has not decided the question of possession or ownership and, therefore, this decision is also of no consequence. 16. 16. In Indrasan Rai vs. Enayat Khan, AIR 1952 Patna. 316, it has been held that section 144 of the Code is never meant to give jurisdiction to a criminal court to decide finally even the question of possession and much less to decide the question of title and ownership of a property. The provisions of section 144 of the Code do not entitle the Court to take a particular piece of property from the custody of A and make it over to B. It has already been pointed out that in the instant case the learned Magistrate has not decided the question of possession or ownership. He has simply restrained the second party petitioner from going over the disputed stalls and has not directed the police to take possession from the second party and deliver the same to the first party. Therefore, this decision also does not apply to the fact of this case. 17. For the reasons stated above, the decisions in Moinuddin vs. Emperor, AIR 1921 Patna, 415 and Rupan Singh vs. Emperor, AIR 1944 Patna, 213, relied upon by Mr. Mishra are also of no consequence. 18. In view of what has been stated above, I do not find any merit in the application. The temporary ORDER :under section 144 of the Code was passed on 4.3.1976. The ORDER :has spent its force by now. The ORDER :passed in a proceeding under section 144 of the Code does not affect the future rights of the parties. With these observations, the application is dismissed.