Jharkhand High Court

Shyamnandan Prasad vs The State Of Jharkhand on 26 April, 2023

                                      1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P.(Cr.) No. 60 of 2023

Shyamnandan Prasad                                 ......     Petitioner
                          Versus

 1.The State of Jharkhand
 2. The Sub Divisional Magistrate, Sadar, Ranchi
 3. Umesh Kumar Yadav, Sub-Inspector, Khelgaon P.s., Ranchi
 4. Parshu Ram Sah                                        ......       Respondents



 CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------

 For the Petitioner       : Mr. Jitendra S. Singh, Advocate
                            Mr. Randhir Kumar, Advocate
 For the State           : Mr. Mohammad Asghar, Advocate
 For the Respondent No. 3 : Mr. Saket Upadhyay, Advocate
                            Ms. Sweta Rani, Advocate
 For the Respondent no. 4 : Mr. R.S. Mazumdar, Sr. Advocate
                             Mr. Nishant Kr. Roy, Advocate


 07/Dated: 26/04/2023

Heard Mr. Jitendra S. Singh, learned counsel for the petitioner, Mr.

Mohammad Asghar, learned counsel for the State, Mr. Saket Upadhyay, learned

counsel for the respondent no. 3 and Mr. R.S. Mazumdar, learned senior counsel

assisted by Mr. Nishant Kr. Roy, learned counsel for the respondent no.4.

2. This petition has been filed for quashing the entire proceeding of

Case No. M-2122 of 2022 as against the petitioner including the order dated

15.10.2022 (Annexure-10) whereby the respondent no. 2-the Sub-Divisional

Magistrate, Sadar, Ranchi passed the order under section 144 of Cr.P.C.

restraining the petitioner from going over the land in dispute.

3. By order dated 24.02.2023 the Co-ordinate Bench of this Court

has been pleased to stay the order dated 15.10.2022 passed in Case No. M-

2122 of 2022 and order was passed that any further proceeding in Case No. M-

2122 of 2022 shall not be taken out.

4. The Record of Case No. M-2122 of 2022 was called for and respondent

nos. 3 and 4 were noticed. Pursuant thereto respondent nos. 3 and 4 have

appeared and filed their counter-affidavit.

5. Mr. Jitendra S. Singh, learned counsel for the petitioner submits

that the land in dispute upon which the proceeding under Section 144 Cr.P.C.

has been initiated is situated at village/Mouza-Dumardaga, P.S. Khelgaon,

District-Ranchi bearing Khata No. 92, Plot No. 357 having an area 33 kathas

and 12 chhataks. He further submits that the land measuring an area 1.47

acres of land under Khata No. 92, Plot No. 357 was possessed by one

Dhouchuwa Ghansi having raiyati interest over the same by virtue of settlement

by the erstwhile zamindar and in the R.S. record of rights his name also

appears and his name was duly mutated in revenue records and on his death

his four sons inherited their right, title, interest and possession over the land.

He further submits that there was mutual partition in the property measuring

1.47 acres between the sons of Dhouchuwa Ghansi and each were allotted

1/4th share out of 1.47 acres equivalent to 36 ¾ decimals, i.e. 20 kathas more

or less. He submits that other three sons of Dhouchuwa Ghansi also came in

possession of their respective share 36 ¼ decimals i.e. 20 kathas of land and

each except Shiva Nayak, the other sons of Dhuchuwea Ghansi and their legal

heirs later on jointly sold their respective share measuring altogether 60 kathas

to different persons out of 1.47 acres in the year, 1984. He submits that after

the death of Shiva Nayak his only son Narayan Nayak succeeded the interest.

The said Narayan Nayak was in possession of actually 36 ¾ decimals i.e. 20

kathas of land but represented the petitioner and his family members that he

was in possession of 52 decimals of land and the same was allotted to his

father Shiva Nayak in the family partition between his brother and convinced

the petitioner to purchase the same. He further submits that on his

representation the petitioner purchased the said land by four sale deeds dated

12.01.1987 and the said land was mutated. He further submits that in the year,

1992 a proceeding under section 144 of Cr.P.C. was initiated by the petitioner.

He submits that the petitioner has filed a declaratory suit being Title Suit No.

13 of 1989 in which respondent no.4 has not appeared and the said suit was

decreed in favour of the petitioner ex-parte. He further submits that respondent

no. 4 had filed a Title Suit No. 75 of 1998 which is still pending for declaring

that the respondent no. 4 herein is in possession over the same land and if

possession not found then decree for recovery of possession over the land in

present proceeding may kindly be passed. He further submits that during

pendency of the T.S. No. 75 of 1998 the respondent no. 4 had also filed a case

under section 144 of Cr.P.C. which was later on converted in proceeding under

Section 145 of Cr.P.C. and the said proceeding was numbered as M. 1151/2004

before the Executive Magistrate, Ranchi. He submits that order passed in M-

1151 of 2004 was challenged before this Court in W.P. (Cr.) No. 311 of 2005

wherein the order passed in M-1151/2004 was quashed as because the

possession of the land was still with the petitioner and his family members and

the said order was passed on the basis of the judgment and decree passed in

T.S. No. 13 of 1989 and also on the basis of T.S. No. 75 of 1998 which was

pending for its adjudication. He further submits that one injunction petition

filed by the respondent no. 4 was also dismissed. He submits that now the

present proceeding has been initiated at the instance of respondent no. 4 in

which by the impugned order the learned Sub-Divisional Magistrate, Sadar,

Ranchi has restrained the petitioner to go on the disputed land. He further

submits that in these backgrounds without any authority and without looking

into the possession of the petitioner said order has been passed which is illegal

and that is why the present writ petition is maintainable and the said order may

be quashed.

6. At the outset, Mr. R.S. Mazumdar, learned senior counsel for the

respondent no. 4 submits that writ petition on behalf of petitioner is not

maintainable as he is not party in proceeding under section 144 Cr.P.C. He

draws the attention of the Court to the counter-affidavit filed on behalf of

respondent no.4 and submits that the land in question appertaining to Khata

No. 92, Plot No. 357, village Dumardaga, Total Area 33 Kathas 12 Chatank was

purchased by respondent no. 4 and his brother namely, Gopalji Sah from

Chunwa Nayak, Jairam Nayak, Mantu Nayak, Tahal Nayak, Mahal Nayak,

Maninath Nayak by virtue of two registered sale deeds dated 31.01.985 and

01.02.1985 for a valuable consideration and the said sale deeds have been

brought on record by way of Annexure-A and A/1 to the counter-affidavit. He

further submits that the respondent no. 4 erected the boundary walls and

building and structures were also made on the land in question. He further

submits that the Title Suit No. 13 of 1989 filed by the petitioner for

declaration of right, title and interest, for the land in question, no summon was

ever served upon the respondent no.4 and in absence of that decree was

passed and when it came to the knowledge about the said title suit, the

respondent no. 4 filed Title Suit No. 75 of 1998 against the petitioner and

others which is still pending. He further submits that petitioner filed an

application under section 89 of the Chhota Nagpur Tenancy Act for rectification

of the entry made in the Record of Right with respect to the land in question

which was rejected vide order dated 30.03.2009 contained in Annexure-E to the

counter-affidavit. He draws the attention of the Court to certain photographs

annexed with the counter-affidavit and submits that it is crystal clear that the

name of respondent no. 4 is displayed in the gate of the premises and insptie

of that the petitioner with the help of others demolished the structure therein

and the matter was reported to the concerned police station for that an F.I.R.

being Khelgaon P.S. Case No. 01 of 2022 has been registered against the

petitioner and on the basis of the report, the said order has been passed. He

submits that order passed under section 144 of Cr.P.C. only remain in force for

60 days and that order has lost its force and only on the direction of

government in the light of sub-section 4 of section 144 of Cr.P.C. the

proceeding can be extended. He submits that there is disputed question of

facts and since emergent situation was there that is why the learned S.D.M.

passed that order. He submits that section 144 of Cr.P.C meant for emergent

situation as has been held 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:-

"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."

On these grounds, he submits that the writ petition is not maintainable.

7. Mr. Saket Upadhyay, learned counsel for the respondent no. 3

submits that the respondent no. 3 was the I.O. of the case bearing Khelgaon

P.S. Case No. 01 of 2022 filed by the respondent no.4 and he has only

submitted report before the learned S.D.M and unnecessarily the petitioner has

arrayed him as one of the party respondent in this writ petition and vague

allegation for connivance against the respondent no. 3 is made which is not

maintainable. He submits that respondent no. 3 has only discharged his official

duty and he is also protected under section 197 of Cr.P.C. He further submits

that in the light of subsection 5 and 6 of the section 144 of Cr.P.C., the

petitioner is still having remedy to pray the learned S.D.M. for appropriate order

and without doing so, he has approached this court and in that view of the

matter the writ petition is not maintainable.

8. Mr. Mohammad Asghar, learned counsel for the respondent-State

submits that the said order was revisiable and the said order has already lost

force considering the proviso of section 144 of Cr.P.C. wherein it has been

stipulated that the said order shall remain in force for 60 days and the

impugned order was passed on 15.10.2022. On these back grounds, he submits

that the writ petition is fit to be dismissed.

9. In view of above submission of the learned counsel for the parties,

the Court has gone through the materials on record and finds that there is

dispute between the parties. There was one Title Suit No. 13 of 1989 instituted

by the petitioner which was decreed exparte without hearing the respondent

no. 4 and respondent no. 4 has also instituted Title Suit No. 75 of 1998 and

after passing of the ex parte decree in T.S. No. 13 of 1989 instituted by the

petitioner for declaration of right, title, interest and possession which is still

pending. There are proceeding with respect to property in question earlier

also under section 144 of Cr.P.C. one order was passed under section 145 of

Cr.P.C. which was challenged in W.P.(Cr.) No. 311 of 2005, wherein the Co-

ordinate Bench has held that since disputed question of fact is there and title

suit is there accordingly, possession cannot be declared under section 145 of

Cr.P.C. Further the present proceeding has been initiated on the basis of F.I.R.

lodged by the respondent no. 4 and on a petition under section 144 of Cr.P.C.

and the learned S.D.M. after hearing both sides passed order. The Court has

looked into that order and finds that the learned S.D.M. has come to the

conclusion that there is emergent situation that is why he has passed order

and in passing the order he has taken care of all the disputes including the

earlier proceeding as well as writ petition filed before this Court and thereafter

he has passed order considering the report of the police that emergent

situation was there. The photographs annexed with the counter-affidavit of the

respondent no. 4 suggests that in gate of the said premises the name of

respondent no.4 is displayed and further photographs suggest that there is

demolition of certain structure which suggests that there was emergent

situation and in that view of the matter learned S.D.M. has passed that order. It

is not in dispute that order passed under Section 144 of Cr.P.C. remain in force

only for 60 days. 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 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

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. 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 said section is

meant for emergent situation as has been dealt with by the Hon'ble Supreme

Court in the suo motu writ petition of "Ramleela Maidan (supra). The said