Babita Gupta … v. 1.The State of Jharkhand 2. The Deputy Commissioner, Chatra 3. Sri Nand Kishore Lal
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(Cr.) No. 192 of 2016 Babita Gupta …… Petitioner Versus 1.The State of Jharkhand 2. The Deputy Commissioner, Chatra 3. Sri Nand Kishore Lal, Sub Divisional Officer, Chatra 4. Officer-in-Charge, Sadar Police Station, Chatra 5. Krishna Murari Prasad @ Murari Prasad …… Respondents CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --------- For the Petitioner : Mr. P.P.N.Roy, Sr. Advocate For the State : Mr. Ravi Kerketta, Advocate For the Respondent No. 5 : Mr. Mitul Kumar, Advocate 06/Dated: 22/06/2023
Legal Reasoning
Heard Mr. P.P.N. Roy, learned senior counsel for the petitioner, Mr. Ravi Kerketta, learned counsel for the State and Mr. Mitul Kumar, learned counsel for the respondent no.5. 2. This petition has been filed for quashing the order dated 26.06.2016 passed by the learned Sub-Divisional Magistrate, Chatra. 3. Mr. P.P.N. Roy, learned senior counsel for the petitioner submits that one Murari Prasad had filed a petition before the Deputy Commissioner, Chatra wherein he had stated that one Babita Gupta petitioner herein had made an application for mutation of the land description of boundary of that land which is mentioned in that petition and as such he had made request to the Deputy Commissioner, Chatra not to mutate the land in her name. He further submits that the Deputy Commissioner, Chatra in the application filed by Murari Prasad-respondent no. 5 itself had passed an order directing the Sub-Divisional Magistrate, Chatra to make enquiry and to take action. He further submits that the learned Sub Divisional Magistrate, Chatra on 18.06.2016 has directed the Circle Officer, Chatra and Officer-in-Charge, Sadar Police Station, Chatra to identify the criminal elements and lodge First Information Report against them. He further submits that Babita Gupta has given Power of Attorney to some 2 person and the boundary which was being erected by Murari Prasad, has been demolished. He further submits that the petitioner has purchased the land in question from one Banshi Sao on 21.12.2010 and she was in possession of the land in question. He further submits that on that application the Circle Officer, Charta had sent report to the Sub Divisional Magistrate, Chatra on 23.06.2016 along with report of Karamchari and the Circle Inspector wherein it has been said that it is matter of civil dispute and the Circle Inspector had recommended to initiate a proceeding under section 144 of the Cr.P.C. He submits that in absence of any proceeding under section 144 of Cr.P.C. the order dated 26.06.2016 has been passed whereby the learned Sub Divisional Magistrate has directed to depute the force for erecting boundary wall in absence of any proceeding under section 144 of Cr.P.C that order has been passed which is against the mandate of law. To buttress his argument, he relied in the case of “Mahendra Prasad Saluja V. Mosst. Sudarsan Devi Khanna & Another” (1976) BBCJ 190. Relying on the said judgment he submits that once it has been found that illegal order has been passed under section 144 of Cr.P.C and dispossession is there the High Court can direct for re-possession of premises in question in favour of the petitioner. He further relied in the case of “ Rajiv Bharti V. State of Bihar” 1985 CRI. L. J. 1943. On these grounds he submits that the aforesaid order may be quashed and possession of the petitioner may be directed to be restored. 4. On the other hand, Mr. Ravi Kerketta, learned counsel for the State submits that looking into exigency in the matter the S.D.O. has passed said order considering that law and order problem is there and in that view of the matter there is no illegality in the order deputing the force for maintaining law and order situation. He further submits that respondent no. 5 has been found in possession of land in question and on the application of the respondent no. 5 the Sub Divisional Magistrate has passed order. On these grounds he submits 3 that this Court may not interfere considering that only maintaining law and order the said order has been passed. 5. Mr. Mitul Kumar, learned counsel for the respondent no. 5 submits that the land belongs to respondent no. 5 and by the backdoor the petitioner was trying to grab the land and some miscreants have been deputed by the petitioner for dispossessing the respondent no.5 and in that view of the matter the Sub Divisional Magistrate swung into action and passed order for deputing force. He submits that there is disputed question of facts involved so far as possession is concerned and at this stage, this Court may not interfere with the order passed which is of the year, 2016. 6. In view of above submissions of the learned counsel for the parties, the Court has gone through the materials on record including contents of several orders as well as counter-affidavit, supplementary counter affidavit and rejoinder to the said affidavits filed by the petitioner. The orders passed by the learned Sub Divisional Officer has been annexed as Annexure-B of the counter-affidavit filed by respondent nos. 1 to 4 and in the order dated 23.06.2016 the reference of Letter No. 350 dated 23.06.2016 has been made and in that order the learned Sub Divisional Officer has recorded that the name of this petitioner has not been mutated. It has also been recorded in that order that vendor of land took in favour of the petitioner however, the rent receipt was not issued. 7. Thus, it appears that there is disputed question of right, title and possession are there between the petitioner and respondent no. 5 and in that view of the matter it is clear that 144 Cr.P.C. provision is meant for emergent situation. How the emergent situation the said is required to be dealt with by the Hon’ble Supreme Court in the suo motu case “Ramlilaa Maidan Incident” 2012 5 SCC 1 wherein para 49, 50, 52 and 132 the Hon’ble Supreme Court has held as under:- 4 “49. Section 144 CrPC is intended to serve public purpose and protect public order. This power vested in the executive is to be invoked after the satisfaction of the authority that there is need for immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tranquillity or a riot or an affray. These features must coexist at a given point of time in order to enable the authority concerned to pass appropriate orders. The expression “law and order” is a comprehensive expression which may include not merely “public order” but also matters such as “public peace”, “public tranquillity” and “orderliness” in a locality or a local area and perhaps some other matters of public concern too. “Public order” is something distinct from order or orderliness in a local area. Public order, if disturbed, must lead to public disorder whereas every breach of peace may not always lead to public disorder. 50. This concept came to be illustratively explained in the judgment of this Court in Ram Manohar Lohia [AIR 1966 SC 740 : 1966 Cri LJ 608] wherein it was held that : (AIR p. 758, para 51) “51. … When two drunkards quarrel and fight, there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order.” However, where the two persons fighting were of rival communities and one of them tried to raise communal passions, the problem is still one of “law and order” but it raises the apprehension of public disorder. The main distinction is that where it affects the community or public at large, it will be an issue relatable to “public order”. Section 144 CrPC empowers passing of such order in the interest of public order equitable to public safety and tranquillity. The provisions of Section 144 CrPC empowering the authorities to pass orders to tend to or to prevent the disturbances of public tranquillity is not ultra vires the Constitution. 52. The scope of Section 144 CrPC enumerates the principles and declares the situations where exercise of rights recognised by law, by one or few, may conflict with other rights of the public or tend to endanger public peace, tranquillity and/or harmony. The orders passed under Section 144 CrPC are attempted to serve larger public interest and purpose. As already noticed, under the provisions of CrPC complete procedural mechanism is provided for examining the need and merits of an order passed under Section 144 CrPC. If one reads the provisions of Section 144 CrPC along with other constitutional provisions and the judicial pronouncements of this Court, it can undisputedly be stated that Section 144 CrPC is a power to be exercised by the specified authority to prevent disturbance of public order, tranquillity and harmony by taking immediate steps and when desirable, to take such preventive measures. Further, when there exists freedom of rights which are subject to reasonable restrictions, there are contemporaneous duties cast upon the citizens too. The duty to maintain law and order lies on the authority concerned and, thus, there is nothing unreasonable in making it the initial judge of the emergency. All this is coupled with a fundamental duty upon the citizens to obey such lawful orders as well as to extend their full cooperation in maintaining public order and tranquillity. 132. All this shows that the authorities had applied their mind to all aspects of the matter on 2-6-2011 and had decided to permit Baba Ramdev to go on with his activities. In furtherance to it, the Deputy Commissioner of Police, Central District had also issued a restricted circular as contingency plan. It is obvious from various letters exchanged between the parties that as on 3-6-2011, there had been a clear indication on behalf of the authorities concerned that Baba Ramdev could go on with his plans and, in fact, proper plans had been made to ensure security and regulation of traffic and emergency measures were also put in place. As I have already indicated, there is nothing on record to show, if any information of some untoward incident or any other intelligence input was received by the authorities which compelled them to invoke the provisions of Section 144 CrPC, that too, as an emergency case without any intimation to the organisers and without providing them an opportunity of hearing.” 8. Admittedly, in view of above materials on record it transpires that the disputes are there. The petitioner has contended that mutation has also not been made in favour of respondent no. 5. 5 9. Further the petitioner is still having remedy either by way of filing revision petition or approach the learned S.D.M. under sub-section 5 of section 144 of Cr.P.C and without doing so the petitioner approached this Court under Article 226 of the Constitution of India. In this back ground when an order passed by criminal court as one under section 144 of Cr.P.C. ceases to be operative by efflux of time, the High Court is not justified in dealing with the reference and pronouncing its views on such order as also giving its findings on rights, title, property etc. merely on ground of avoiding future complications that is why this Court restrained and has not opined on merit of the disputed right, title and interest of the parties. In this regard reference may be made to the case of “Mohammad Ibrahim V. City Magistrate, Varanasi” reported in (1983) 2 SCC 153 wherein para 6 the Hon’ble Supreme Court has held as under:- “6. The High Court was in error in dealing with the criminal references and pronouncing orders on the same. The High Court noticed that the orders passed under Section 144 of the Code of Criminal Procedure ceased to be operative due to efflux of time. The ground given by the High Court in quashing the orders passed by criminal courts was that the High Court did so in order to avoid any complication in future. In quashing the criminal orders the High Court also gave findings as to rights of parties. The High Court should not have pronounced views on the orders passed by the criminal courts when they ceased to be operative. The High Court was in error in giving findings on rights, title and property. The orders of the High Court in criminal matters are also set aside.” 10. Further maintenance of law and order being the function of the District Administration and at the instance of petitioner claiming right under Article 226 of the Constitution of India, the High Court cannot interfere with such function of District Administration and the District Administration is expected to take measures well in advance in consonance with Section 144 of Cr.P.C. and in that view of the matter the writ petition is not maintainable. Further reference may be made to the case of “ Md. Gulam Abbas and Another V. Md. Ibrahim and Others” (1978) 1 SCC 226 wherein paras 2 to 5 the Hon’ble Supreme Court has held as under:- “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 his 6 possession or under his management” with the object, inter alia, of preventing “a disturbance of the public tranquility, 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 of orders mentioned here are obviously intended only to prevent dangers to life, health, safety or peace and tranquility 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(6) of the Code. Questions of title cannot be decided here at all. But, previous judgments on them may have a bearing on the question whether, and, if so, what order should be passed under Section 144 of the Criminal Procedure Code. 3. It may sometimes happen that a person may be prevented from doing something even upon his own property provided the doing of a perfectly legal act constitutes a danger to human life, health, or safety of others or to public peace and tranquility. An example of this can be shouting of provocative slogans from one’s own house top. Nevertheless. it is the duty of the authorities to aid and protect those who are performing completely legal acts in a reasonable and perfectly legal manner or in accordance with what the law permits them to do. It is only where it is not practicable to allow them to do something which is quite legal, having regard to the state of excited feelings of persons living in an area or frequenting a locality, that any action may be taken under Section 144 of the Criminal Procedure Code which may interfere with what are, otherwise, completely legal and permissible conduct and speech. 4. It was asserted on behalf of the petitioners that in a representative suit between Shia and Sunni sects of Muslims question of title to properties or places to which Magistrate’s orders under Section 144 of the Criminal Procedure Code related has already been decided. If that be so, we have no doubt that the Magistrate will respect that decision in making an order under Section 144, CrPC in the future. Then it would be easier for the Magistrate to see who should be allowed to exercise the legitimate right of holding a meeting on or occupying a particular property or doing anything else there. 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 what may be reasonably necessary or expedient in a situation of which he is the best judge. 5. If any community or sect is disposed to transgress the rights of another in a particular property habitually, the remedy lies by way of a civil suit for an injunction. Both sides before us make conflicting assertions on such questions. It is impossible to decide them for the first fine either on a writ petition or in a proceeding under Section 144 of the Criminal Procedure Code. If public peace and tranquility or other objects mentioned there are not in danger the Magistrate concerned cannot act under Section 144. He could only direct parties to go to the proper forum. On the other hand, if the public safety, peace, or tranquility are in danger, it is left to the Magistrate concerned to take proper action under Section 144. Criminal Procedure Code. No hard and fast rules can be laid down for guidance in exercising a power on which decisions must necessarily be governed by the existing situation in each case. It has to be judged on facts and circumstances existing at a particular place at a particular time. 11. Looking into the ratio laid down by the Hon’ble Supreme Court in above cases it is crystal clear that its duty of the authority to aid and protect those who are performing completely legal acts in a reasonably and perfectly legal manner or in accordance with what the law permits them to do. The 7 learned Magistrate is not concerned with individual rights in performing his duty under section 144 Cr.P.C. but he has to determine what may be reasonably necessary or expedient in a situation of which he is the best Judge. 12.
Decision
Thus, this Court comes to the conclusion that the writ petition itself is not maintainable under Article 226 of the Constitution of India with regard to disputed right, title, interest and possession of parties. Further if any proceeding under section 144 of Cr.P.C. is there, the said order has already lost force in view of sub-section 4 of Section 144 of Cr.P.C. 13. Even if the argument of Mr. P.P.N. Roy, learned senior counsel for the petitioner is accepted that in absence of proceeding under section 144 of Cr.P.C, the impugned order has been passed, such a belated stage, this Court is not inclined to examine that aspect of the matter considering that for law and order problem of the district administration and in emergent situation that order has been passed. Accordingly, no relief can be granted to the petitioner. 14. It is made clear that the Court has not opined on right, title and interest of either of the parties which will be decided in the proceeding that may be initiated at the instance of the respondent no. 5 or which might have been pending before any court, in accordance with law without being prejudiced by this order. 15. 16. The petitioner is at liberty to approach the appropriate forum. Accordingly, this writ petition is dismissed. Pending I.A., if any, stands disposed. Interim order is vacated Satyarthi/ (Sanjay Kumar Dwivedi, J.)