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2008 DIGILAW 966 (CAL)

Mohan Kumar More v. State of West Bengal

2008-09-26

ARUNABHA BASU

body2008
JUDGMENT Arunabha Basu, J. The revisional application under section 397/401/482 of the Code of Criminal Procedure (hereinafter called the Code) is directed to set aside the order dated 27th June, 2008 passed by the learned Executive Magistrate, 1st Court, Alipore in connection with M.P. CaseNo.1213 of 2008 whereby and whereunder learned Executive Magistrate directed the O.P. Nos. 2 to 5 shall have free ingress and egress and also restrained the petitioners from illegally ousting the O.P, Nos. 2 to 5 from the schedule property. 2. In the revisional application it is alleged that the learned Executive Magistrate without drawing any proceeding in terms of section 144 of the Code, issued the restrain order and as such the order passed by the learned Executive Magistrate is bad in law. It is also stated that the dispute as alleged in the application filed before the learned Executive Magistrate is a private dispute between the parties having no connection, either with breach of public peace or tranquility and as such the learned Executive Magistrate should not have passed any order in connection with a matter which is a private dispute between the parties. It is also stated that the matter as to the dispute between the parties is already under consideration by a Civil Court of competent jurisdiction in connection with Title Suit No. 1819 of 2008. In the said suit on the application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure by the O.P. herein, learned Civil Court granted an order of status quo, as such the matter cannot be agitated before the learned Executive Magistrate. 3. Section 144 of the Code empowers an Executive Magistrate to issue order in urgent cases of nuisance or apprehended danger. 3. Section 144 of the Code empowers an Executive Magistrate to issue order in urgent cases of nuisance or apprehended danger. Section 144 of the Code is reproduced below: "144.Power to issue order in urgent cases of nuisance or apprehended danger.- (1) In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government in this behalf, immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such" Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray. (2) An order under this section may, in cases of emergency or incases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (3) An order under this section may be directed to a particular individual or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. (4) No order under this section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification. (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him, or by his predecessor-in -office. (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him, or by his predecessor-in -office. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). (7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order: and if the Magistrate or the State Government, as the case may be, rejected, the application wholly or in part, he or it shall record in writing the reasons for so doing." The Constitutional validity of section 144 and Chapter VIII of the Code came up for consideration before the seven Judges Constitutional Bench of Hon'ble Supreme Court in case of Madhu Limaye & Anr. vs. Sub-Divisional Magistrate, Monghyr & Ors., reported in AIR 1971 SC 2486 . The Constitutional Bench of the Supreme Court on consideration of the entire scheme held that section 144 when properly applied is not unconstitutional as offending under Article 19 of the Constitution. At para 25 of the aforesaid decision Supreme Court held as follows: "The section is concerned with freeing society from menace of serious disturbances of a grave character. It is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. That being so and if the annoyance has assumed sufficiently grave proportions as to bring the matter within interests of public order the matter must fall within the restrictions provided by the Constitution itself as permissible." 4. At para 27 of Madhu Limaye case (supra) Supreme Court held, as set out below: "27. The effect of the order being in the interest of public order and the interests of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. At para 27 of Madhu Limaye case (supra) Supreme Court held, as set out below: "27. The effect of the order being in the interest of public order and the interests of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. As was pointed out in Babulal Parate's case, 1961(13) SCR 423: AIR 1961 SC 884 (supra) where two rival trade unions clashed and it was difficult to say whether a person belonged to one of the unions or to the general public, an order restricting the activities of the general public in the particular area was justified." 5. The scope of section 144 of the Code came up for consideration before the three-Judge Bench of Hon'ble Supreme Court in Md. Gulam Abbas & Anr. vs. Md. Ibrahim & Ors., reported in AIR 1978 SC 422 . In this case the Supreme Court held as follows: "2. This provision confers a jurisdiction to 'direct any person to abstain from a certain act or to take certain order with certain property in this possession or under his management' with the object, inter alia, of preventing 'a disturbance of the public tranquillity, or a riot, or an affray'. Section 144 (3) specifically lays down that the order under this section 'may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place'. The kind or orders mentioned here are obviously intended only to prevent dangers to life, health, safety or peace and tranquillity of members of the public. They are only temporary orders which cannot last beyond two months from the making thereof as is clear from section 144 (4) of the Code. Questions of title cannot be decided here at all. But, previous judgments on them may nave a bearing on the question whether, and, if so, what order should be passed under section 144, Criminal Procedure Code." 6. The Supreme Court in the aforesaid decision of Md. Gulam Abbas Anr. 's case (supra) held: "It may however be noted that the Magistrate is not concerned with individual rights in performing his duty under section 144 but he has to determine that may be reasonably necessary or expedient in a situation of which he is the best judge." 7. The Supreme Court in the aforesaid decision of Md. Gulam Abbas Anr. 's case (supra) held: "It may however be noted that the Magistrate is not concerned with individual rights in performing his duty under section 144 but he has to determine that may be reasonably necessary or expedient in a situation of which he is the best judge." 7. In Babulal Parate vs. State of Maharashtra & Ors., reported in AIR 1961 SC 884 , the Supreme Court held that the power under section 144 of the Code of Criminal Procedure can be exercised only in an emergency and for the purpose to prevent 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. The power vested to a Magistrate under section 144 of the Code of Criminal Procedure is not unlimited or untrammelled. 8. In Gulam Abbas & Ors. (supra) the Supreme Court held that the entire basis of action under section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of to prevent disorders, obstructions and annoyance with a view to secure the public weal by maintaining public peace and tranquillity. Preservation of the public peace and tranquility is the primary function of the Government and the power under section 144 is conferred on the executive magistracy enabling it to perform that function effectively during emergent situation. 9. In State of Karnataka & Anr. vs. Praveen Bhai Thogadia, reported in 2004(4) SCC 684 , the Hon'ble Supreme Court held that the object of section 144 of the Code is due to legislative intention to preserve public peace and tranquillity without lapse of time, acting emergently, if warranted, giving thereby paramount importance to societal needs by even overriding temporarily private rights keeping in view public interest. 10. In view of the decision of the Supreme Court as highlighted above, justification of the order passed by the learned Executive Magistrate is required to be examined. 11. Learned Advocate for the petitioner in support of his contention that impugned order under challenge as passed by the learned Executive Magistrate is beyond his jurisdiction has referred to the decision of this Court in Dayamay Bhattacharya vs. Surya Kanta Sur & Ors., reported in 1989 C Cr. 11. Learned Advocate for the petitioner in support of his contention that impugned order under challenge as passed by the learned Executive Magistrate is beyond his jurisdiction has referred to the decision of this Court in Dayamay Bhattacharya vs. Surya Kanta Sur & Ors., reported in 1989 C Cr. LR (Cal) 86, the learned Single Judge of this Court while rejecting the writ petition to enforce compliance with an order purportedly passed under section 144 of the Code and after referring to that earlier decision of the Supreme Court in Babulal Parate (supra) held as follows: "A plain reading of section 144 of the Code of Criminal Procedure will unmistakably show that before an Executive Magistrate can pass any order thereunder, certain requirements are to be complied with. While considering this aspect of the matter in the case of Babulal Parate vs. State of Maharashtra & Ors., reported in AIR 1961 SC 884 , the Supreme Court observed that to act under sub-section (1) of section 144, the Magistrate himself had to form an opinion that there was sufficient ground for proceeding under that section and immediate prevention or speedy remedy was desirable. The court further pointed out that the sub-section also required the Magistrate to make an order in writing and the state therein the material facts by reason of which he was making the order thereunder. In reiterating the above proposition, the Supreme Court further pointed out that the latter part of sub-section (1) of section 144 specifically mentioned that the order of the Magistrate should set out the material facts of the case." 12. It is the contention of the learned Advocate for the petitioner that the order under challenge clearly shows the learned Executive Magistrate did not record his satisfaction that there is any apprehension of breach of peace which necessitated initiating a proceeding under section 144 of the Code. So far as the present case is concerned it is evident from the order under challenge passed on 27th June, 2008, the learned Executive Magistrate failed to record his satisfaction about the apprehension of breach of peace and failed to draw up appropriate proceeding before passing the impugned order under challenge and restrained the petitioner herein to do certain acts in respect of the schedule property. 13. 13. The attention of this Court was also invited to the recital in the application filed under section 144 of the Code. From the recital it appears that the parties in connection with the aforesaid proceeding under section 144 of the Code are relations to each other. They are occupying the same premise and over the establishment of rights, the O.P. herein has instituted a civil suit before the appropriate Civil Court. At para 9 of the application filed under section 144 of the Code, the O.P. herein, has stated, "For which the situation is now tensed and alarming and there is apprehension of serious breach of pc ace and disturbance of the public tranquillity." 14. In order to invoke the extraordinary power vested under section 144 of the Code, the learned Executive Magistrate is required to apply his mind to the recital in application in order to ascertain whether it is a fit case to draw up any proceeding under section 144 of the Code. A bare recital about breach of public peace and tranquillity will not be sufficient justifying invocation of the extraordinary power by the learned Executive Magistrate. Plain reading of the recital in the application clearly shows that there is disturbance between the parties where it is alleged that one party is trying forcibly to remove the other party from the schedule property as stated in the application. In order to establish the private right and in order to settle private dispute, the party aggrieved must move the Civil Court in order to establish the said right. Civil Court is empowered under the provisions of law, such a Civil Procedure Code, to pass order protecting the right and interest of the party aggrieved by any act by the O.P. in connection with the property, which is subject-matter to that litigation. The approach before the Executive Magistrate cannot be taken as a short-cut measure to establish one's right in respect of property or to settle any private dispute. 15. Refuting the argument advanced by the learned Advocate for the petitioner, learned Advocate for the O.P. submitted that it is an incorrect proposition of law relating to the scope of section 144 of the Code that no proceeding in connection with individual interest or particular individual can be initiated under section 144 of the Code. 15. Refuting the argument advanced by the learned Advocate for the petitioner, learned Advocate for the O.P. submitted that it is an incorrect proposition of law relating to the scope of section 144 of the Code that no proceeding in connection with individual interest or particular individual can be initiated under section 144 of the Code. In support of his contention learned Advocate for the petitioner referred to a Division Bench decision of this Court in Rashid Allidina vs. Jiwandas Khemji & Anr., reported in AIR (30) 1943 Cal 35.,The learned Advocate for the O.P. specifically relied on the following observation of the Division Bench of this Court and the same is reproduced below: "A Magistrate no doubt is responsible for the peace of his district. But from this, it does not follow that the High Court has no duty to see whether this responsibility has been properly discharged in any particular instance. Further, the peace of the district as contemplated by section 144, Criminal Procedure Code, is not unconcerned with individual interests and the particular individual who feels aggrieved by the interference or non-interference should not be driven out of Court simply because the Magistrate thought fit to act in a certain manner. Moreover, section 144, Criminal Procedure Code, is not limited in its operation only to cases of possible breach of general peace of the district. The section contemplates cases of 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 tranquility, or a riot, or an affray." 16. It may be pointed out in this context that in order to initiate proceeding under section 144 of the Code, it is not the requirement of law that individual person cannot move the Executive Magistrate in terms of provision under section 144 of the Code but in view of the decisions of the Supreme Court as referred to above the establishment of a private right between the parties cannot be within the scope of section 144 of the Code. The invocation of the power by the Executive Magistrate would arise only in urgent cases of nuisance or apprehended danger. This is an extraordinary power vested with the Executive Magistrate to protect law and order of a particular place. The invocation of the power by the Executive Magistrate would arise only in urgent cases of nuisance or apprehended danger. This is an extraordinary power vested with the Executive Magistrate to protect law and order of a particular place. The exercise of such power will be available only to protect public peace and tranquillity. While exercising the power an Executive Magistrate can apply his mind after drawing up appropriate proceeding whether the dispute as alleged in the application is of such proportion affecting public peace and tranquillity. Only then the Executive Magistrate is empowered to pass order in terms of provision under section 144 of the Code. It must be borne in mind that section 144 of the Code as framed clearly indicates that it is a preventive measure in order to protect public peace and tranquility. The order that may be passed shall remain in force for a period of 60 days, unless the State Government by notification direct the order passed by the Executive Magistrate shall remain in force for such further period not exceeding six months. Section 144 of the Code as framed cannot be utilised to establish individual right of a person. So far as the present case is concerned it is clear that the question as to right of the respective parties in respect of the immovable property is now the subject-matter of consideration before the Civil Court. In my view the O.P. adopted a short-cut measure, even after approaching the Civil Court by filing an application under section 144 of the• Code before the learned Executive Magistrate. Such action on the part of a person cannot be within the scope of section 144 of the Code. 17. So far as the present case is concerned I have already pointed out that the learned Executive Magistrate without drawing up any proceeding which is a mandatory requirement to exercise power under section 144 of the Code passed a restrain order in respect of the schedule property. No satisfaction on the part of the learned Executive Magistrate could be disclosed that the dispute between the parties has assumed such proportion, whereby there is every apprehension or danger of public peace and tranquillity, justifying taking such extreme step under section 144 of the Code. No satisfaction on the part of the learned Executive Magistrate could be disclosed that the dispute between the parties has assumed such proportion, whereby there is every apprehension or danger of public peace and tranquillity, justifying taking such extreme step under section 144 of the Code. In other words, unless there is grave or imminent danger affecting public peace and tranquillity and only after drawing appropriate proceeding the Executive Magistrate would not be justified to pass an order under section 144 of the Code. But so far as the present case is concerned these elements are altogether absent and in the fact situation of this case the decision referred by the learned Advocate for the O.P. would have no application. 18. It may also be pointed out that the order passed under section 144 of the Code has lost its force by efflux of time, as the impugned order was passed on 27th June, 2008. The impugned order under challenge has lost its force after the expiry of 60 days from the date of order in terms of provisions under section 144(4) of the Code. Even though the impugned order under challenge has lost its force by efflux of time, but in view of the illegality committed by the learned Executive Magistrate, as highlighted above, I am of the view that the impugned order as well as the entire proceeding in connection with M.P. Case No.1213 of 2008 now pending before the learned Executive Magistrate, 1st Court, Alipore is required to be quashed and the same is quashed accordingly. 19. In view of the disposal of the revisional application no separate order is required to be passed on the application being CRAN No. 2265 of 2008 and the same stands disposed of along with the revisional application. 20. There shall be no order as to costs. 21. Criminal Section is directed to supply urgent photostat copy of the order to the parties as and when applied for. Appeal disposed of.