In Re: Bireshwar Basu Majumdar and others

These three rules relate to certain orders made by the Sub-Divisional Magistrate of Goalundo on the 8th June and on subsequent dates, directing that certain zemindars should remove certain prostitutes whom they had settled upon their lands to some other part of Goalundo, and because they did not obey the said order, that they should be prosecuted under sec. 188, I. P. C. These orders, we might here mention, not only affect the zemindars, but also the prostitutes; and the applications that were made to us and upon which the rules were granted were applications made on behalf of the zemindars as also on behalf of the prostitutes. It appears upon a reference to the record that the Magistrate Had, at one time authorized the said prostitutes being settled by the zemindars upon a particular portion of their property; but subsequently, upon representations being made to him by certain railway officials, he ordered that their houses should be taken down, that they should remove from the lands upon which they had settled, within 24 hours, and that they should take up their quarters on the other side of the railway line which belonged to some other proprietor, and which the said Magistrate thought: was the appropriate place where they should go and live.

These orders purport to have been made under sec. 144, Cr. P. C Indeed '' the notices that were issued upon the petitioners, bearing date the 8th June and subsequent dates, expressly mention the said section as the law under which the said orders were made.

The Magistrate in the Explanation that he has submitted to this Court, upon the rules being served upon him, does not, as we read that Explanation, insist that he was authorized in law to make the orders in question under sec. 144, Cr. P. C.

But however that may be, it seems to us to be clear enough that they are ultra vires.

We are of opinion that sec. 144, Cr. P. C, was not intended to apply to such case as were before the Sub-Divisional Magistrate.

The zemindars had, under leases entered into between them and the prostitutes, settled them upon one portion of their property : apparently the prostitutes spent some money in building their huts and were living there for some little time; and it was then represented to the Sub-Divisional Officer that if some of the residents of Goalundo were to visit these prostitutes, they would have to cross the railway lines and thereby their lives might be endangered; and thereupon, and for no other reason that we can discover upon this record, it was ordered that they should be forthwith removed. Though it may, no doubt, be argued that the words "such Magistrate * * * may direct any person to abstain from a certain act, or to take certain order with certain property in his possession," &c, as occurring in the first clause to sec. 144, Cr. P. C, are of such general character as may cover a case like this, and that a Magistrate is entitled to make an order of the kind against the person who is in possession of such property, yet we do not think that it was ever the intention of the Legislature that orders like those with which we are concerned should be made in the circumstances of the case before the Magistrate.

We are of opinion tint the orders referred to are ultra vires; and as such, should be set aside. The Rules will he made absolute.