Report No. 37
351. Section 144 and newspaper.-
A suggestion1 not to pass orders under section 144 in respect of newspapers has been made, but the matter cannot be governed by a general and imperative provision.
It has also been suggested2 that newspapers be exempted from orders under section 144 prohibiting the assembly of five persons. This concerns the actual orders passed, and does not need an amendment of the law.
1. F. 3(2)/55-L.C., S. No. 7.
2. F. 3(2)/55-L.C., S. No. 7.
352. Section 144(1).-
It has been suggested by a High Court Judge,1 that some parts of section 144 are unconstitutional. The point has been already dealt with.2
1. F. 3(2)/55-L.C., Pt. II, No. 33(a).
2. See discussion regarding validity of section 144, supra.
353. Section 144(1) and competent Magistrates.-
In section 144(1), before the word "other Magistrate", the word "Executive" may be added.
354. Section 144(3) and meaning of the expressions "place" and "frequenting".-
The suggestion, made in the Report of the U.P. Committee to investigate into causes of corruption in Subordinate Courts1 to add the words "or area" after the word "place" in section 144(3) was considered by us in detail. The case-law on the subject was examined, and the examination revealed that there was a conflict not only on the question whether the word "place" covered an area-a matter referred to by the U.P. Committee-, but also on the question whether the expression "frequenting" included the act of residing.2 We recommend that a clarification may be made on both the points, and that the wider views should be adopted by an amendment of section 144(3).
1. F. 3(2)/55-L.C., Pt. VII, S. No. 449, Report of the U.P. Committee, (1963), p. 44, and draft at p. 230.
2. For detailed discussion, see Appendix 9.
355. Section 144(6).-
Regarding section 144(6), the case-law as to its validity was considered in detail by us.1 Our view is, that since the State Government's power to extend the duration of the order of the Magistrate is limited by the consideration that the extension should be "in cases of danger to human life, health or safety, or a likelihood of a riot or an affray", it is a valid provision. It is not necessary to lay down any maximum duration-for example 6 months, in this respect. But, in our opinion, it is necessary to give a right of representation to the person affected, after the duration is extended.
1. For detailed discussion, see Appendix 10.
356. Section 144(6)-Suggestion regarding.-
Various suggestions1 under section 144(6) are noted below:-
(a) Suggestions to increase the initial period to 3 or 6 months were considered, but not accepted by us.
(b) A suggestion to empower the District Magistrate to extend the initial period, was considered, but did not find favour with us, as such a power would turn out to be risky.
(c) A suggestion to give power to the State Government to revoke the order was considered; but we felt that the present position, under which only the District Magistrate could revoke the order, is proper. Primarily, it is the District Magistrate who is responsible for maintaining law and order in the district under his charge, and the power should vest in him.
1. F. 27(3)/55-JudI. II (Home Ministry File) Appendix I, Items 23-24, and F. 3(2)/55-L.C., Pt. I, S. No. 69.
357. Section 145(1).-
The power under section 145(1) should be assigned to the following Executive Magistrates:-
(a) Presidency towns-
Chief Presidency Magistrates (Compare the Bombay Amendment).
[It is unnecessary to empower other Presidency Magistrates.]
(b) Outside the Presidency towns etc. the power may be given to
(i) District Magistrates (see existing section);
(ii) Sub-divisional Magistrates (see existing section);
(iii) any other Executive Magistrate of the first class (compare the Punjab amendment);
Date of receipt of the police report etc. should be mentioned in the order issued, under section 145(1).
358. Section 145(1) and date.-
Section 145(4), second proviso, creates a legal fiction by providing that if it appears to the Magistrate that any party within two months next before the date of "such order"-that is to say, the preliminary order under sub-section (1)-has been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession from such date.
This proviso was introduced in 1898 by the Select Committee1 for the following reasons:-
"As the law stands at present, the date of the order under sub-section (1) of this clause is taken as the critical date for the purpose of determining actual possession. This appears to give an unfair advantage to a person who has forcibly dispossessed another. But difficulties arise when the test of actual possession at the time of the institution of the proceedings is departed from. We think that the proviso we have added to subsection (4) goes as far as is possible to meet the evil in question without involving the Magistrate in an inquiry into title or right to possession, which is the function of a Civil Court."2-3
1. Report of the Select Committee, dated 16-2-1898, Legislative Proceedings, April 1898, Nos. 24 to 128, Appendix A-50 (National Archives).
2. For the law before 1898, see Katras Jherriah Coal Co. v. Subkrishta Daw and Co., 1894 ILR 22 Cal 297 (303).
3. For history of section 145, see the cases cited in Athippa Gounder, AIR 1967 Mad 445, para. 50(F).
359. Now, a difficulty has arisen as to the computation of the period of two months, i.e., as regards the starting point for counting the period. The period of two months has to be counted backward. But the question is, whether the period is to be counted from the date of the actual passing of the order by the Magistrate, or whether it can be counted from the date of the receipt of the police report or other information by the Magistrates. The need for an amendment in this respect has been emphasised judicially.1 What may be described as the "narrower interpretation" has been put in several decisions.2-5
On principle, however, the wider view should be preferred, because no litigant ought to suffer for the delay that takes place in court.6
1. Gangadhar v. Shyam Sunder, AIR 1958 Ori 150 (157).
2. Ganga Bux, AIR 1959 All 141 (FB).
3. Tolan v. Duben, AIR 1951 Ass 161.
4. State v. Ram Jiwan, AIR 1962 Bom 8.
5. Kampati, AIR 1961 AP 208.
6. Cf the reasoning in C. Narayana v. Kesappa, AIR 1951 Mad 500, overruled recently in Athiappa Gounder, AIR 1967 Mad 445 (FB).
360. We made an attempt to find out if the legislative materials threw any light as to why the starting point was so framed as it now stands.
The proviso was inserted in 1898 at the Committee stage.1 In the discussions on the 1898 Bill2 and in the proceedings of the Council of the Governor General of India dated 11th March, 1898, several points (including the history of the law and the provisions of Act 4 of 1840, section 2 of which corresponded to section 145), were considered. But this particular point was not adverted to at that time. There is a long speech by Sir Henry Prinsep in the discussions (after the Select Committee Report of 1898), in the proceedings of the Governor-General-in-Council, objecting to the proviso. But he also does not seem to have discussed this aspect.
1. See para. 358, supra.
2. See, particularly, the Minute of dissent of Sir Henry Prinsep in the Select committee Report, dated 16-2-1898; Legislative proceedings (April 1898), Nos. 24 to 128, Appendix A-50 (National Archives).
361. In his speech, the Law Member1 thus explained the object of inserting the proviso:-
"The Magistrate under this clause is not to decide questions of title but is to confirm existing actual possession. But then when we came to consider the matter in Select Committee, this objection was pointed out to us. The Magistrate will probably not be put in motion and will not hear the case until the ordinary possession has been disturbed. When a man has been evicted, that is the time when he runs off to the Magistrate for protection, and if the section remains as it was originally drafted, the Magistrate would be obliged to confirm him in possession.
In Committee we saw the difficulties of both views and we came to the conclusion that prima facie the duty of the Magistrate was not to go into questions of title, but to confirm the party in possession. If, however, it turned out that any part had been wrongfully and forcibly dispossessed, it was thought that the Magistrate "ought to take cognizance of such a case, and give back the actual possession to the party who had been so ousted, but it was thought undesirable that the Magistrate should go into a long roving inquiry and we, therefore, fixed the period at which we might replace the party forcibly dispossessed in possession at two months."
The proviso was then adopted.
1. See the speech of Mr. Chalmers, Law Member, in Proceedings of the Governor-General-in-Council, dated 11th March, 1898, Legislative Proceedings April, 1898, Nos. 4 to 128, A-60 (National Archives).
362. In view of the controversy1 on the subject it is desirable to make the law clear by substituting the starting point as the date of the receipt of the police information etc. in section 145, sub-section (4), second proviso. In consequence, to ensure that the date is recorded, the order under sub-section (1) should also record the date of receipt of the information etc.
1. See para. 359, supra.
363. The anomaly caused by the present provision in section 145(4), second proviso, is illustrated by the view expressed by a High Court Judge in his suggestion:1
"Sometimes on account of a serious defect in' the preliminary order the High Court may quash all the proceedings and direct the Magistrate to issue a fresh order under sub-section (1); in such a case not only the provision would be rendered useless, but also it would do injustice to a party. A party might have been put in the possession of the property by the Magistrate on passing of the final order under sub-section (6), with the result that he would be in possession on the date on which the Magistrate passes a fresh order under sub-section (1) in accordance with a remand order of a High Court, and the benefit of the proviso would be lost."
1. Suggestion in F. 3(2)/55-L.C., Pt. II, S. No. 33(a).