JUDGMENT J. Narain, J. This application is directed against the order passed under section 144 (1) of the Code of Criminal Procedure (herein after referred to as the 'Code') with respect to plot Nos. 729, 730, 731 and 738 of Khata No. 143 situate in village Debiana within police Station Nirsa District Dhanbad. 2. Durga Boka Pahari Colliery where in are situated the above plots, originally belonged to Lakshmi Narain Singh and Sagar Narain Singh. They granted lease of both surface and under ground right to Shri Gouri Kanta Mukherjee as Shebait of Durga-Mata. Thereafter Narain Mukherjee came to possess and work the colliery till he sold it to the petitioner by means of a registered sale deed dated the 27th of August, 1960. There was a proceeding under section 145 of the Code in respect of 150 bighas of land consisting of some of the plots in dispute and the possession was found with the petitioner. This order was affirmed with slight variation by the High Court on the 15th of January, 1973. Then a proceeding under section 144 of the Code was commenced on the 28th of February, 1974 against the petitioner and others in respect of the subject of dispute including plot no. 729. It was made absolute against the petitioner by order dated the 12th of August, 1974. The petitioner on, the 24th of January. 1974 filed Title Suit No. 5 of 1974 against the Coal Mining authorities for a declaration that the management of the colliery has not vested in Government and for an Injunction restraining the defendants from interfering with the possession of the petitioner. An injunction was granted and on appeal the order was upheld by the District judge on the 31st of May, 1974. Civil Revision against this order is pending in this Court. Another proceeding under section 144 of the Code was initiated on the 29th of January, 1975 (M. P. Case No.83 of 1975). It was stated therein that the report of the Local Officer of Nirsa Police Station showed that the petitioner was encroaching upon Government land appertaining to plot Nos. 729, 730, 731 and 738 by conducting mining operations and there was apprehension of the breach of the peace and the petitioner was asked to show cause. It was stated therein that the report of the Local Officer of Nirsa Police Station showed that the petitioner was encroaching upon Government land appertaining to plot Nos. 729, 730, 731 and 738 by conducting mining operations and there was apprehension of the breach of the peace and the petitioner was asked to show cause. By order dated the 3rd February, 1975 the learned Magistrate dropped the proceeding saying that the proceeding was initiated on the report of the Officer Incharge of Nirsa Police Station but it appeared from his report dated the 3rd February, 1975 that action under section 144 of the Code had not been recommended by him. Report of the Officer Incharge showed that the petitioner used to get ready to commit breach of the peace at the time of realisation of royalty and as such the learned Sub-Divisional Magistrate called for a report whether there was any apprehension of breach of the peace at the bands of the petitioner at the time of realisation of royalty. No report from the Officer Incbarge of the Police Station was received. Instead there was a report of the Anchal Adhikari upon which the present proceeding, on the 4th of February, 1975, was commenced. The report speaks of illegal working of mines and future states that plot no. 729 which is recorded as bed of Pusai river is a public property used as a 'cremation ground and that as a result of illegal extraction of coal there is likelihood of communal tension. It does not say of apprehension of the breach of the peace at the time of realisation of royalty. On this report the learned Sub-Divisional Magistrate, as stated above, commenced the proceeding and while doing so stated that the petitioner had been encroaching upon Govt. lands bearing plot Nos. 729, 730, 731 and 738 by illegally starting mining operation and that immediate preventive measures were necessary to be taken and, accordingly restrained the petitioner and asked him to show cause by a certain date. It is against the above order that the present application is directed. 3. lands bearing plot Nos. 729, 730, 731 and 738 by illegally starting mining operation and that immediate preventive measures were necessary to be taken and, accordingly restrained the petitioner and asked him to show cause by a certain date. It is against the above order that the present application is directed. 3. In my opinion the whole proceeding is misconceived and it is an abuse of the process of law in as much as regard being had to the previous history of the case, to which reference has been made above, the order in question amounts to ousting a person in possession from possession. That the petitioner has been in possession of the subject of dispute follows clearly from the previous 145 proceeding and the injunction order in Title Suit No.5 of 1974. It has been held in Ramanlal Bhogilal Patel. Vs. N. H. Sethna and others1 that in a proceeding under section 144 (1) the Commissioner of Police has no power to direct a person not to enter or reside in a specified area in which he was residing at the time of order and that direction can be given only in negative character and that no positive Act, can be directed to be done under this provision. In Sairu Seikh Vs. Shyamlal Sardar2 the Calcutta High Court says that: "Where the petitioners were in possession and they had sown the paddy crop which was about to be ready for harvesting, Magistrate can not issue an injunction against them restraining them from entering upon the land. If they were in wrongful possession, then the opposite party had other remedies. His remedy was not by way of an injunction under Section 144. That form of injunction could only be issued to protect existing possession and not to oust a person in possession from possession." This Court also in Kumar Fateh Singh Vs. State of Bihar3 has taken the same view. 4. His remedy was not by way of an injunction under Section 144. That form of injunction could only be issued to protect existing possession and not to oust a person in possession from possession." This Court also in Kumar Fateh Singh Vs. State of Bihar3 has taken the same view. 4. The order dated the 3rd of February, 1975 passed by the learned Magistrate show that breach of the peace was apprehended at the time or realisation of royalty but the Anchal Adhikari does not make a mention of it rather refers to a different matter altogether namely, disturbance of communal harmony with which fact the learned Sub-divisional Magistrate did not feel satisfied and the impugned order does not refer to it rather confines itself to the question of encroachment only. 5. For the State reliance was placed upon the provisions of section 397 (2) of the New Code of Criminal Procedure which bars exercise of power of revision in relation to any interlocutory order passed in a proceeding. Strong reliance was also placed upon R. H. Bhutani Vs. Miss Mani J. Desai and other' to show that satisfaction under sub-section (1) of Section 144 of the Code is of the Magistrate and that once the Magistrate feels satisfied about the apprehension of the breach of the peace it is perfectly within his jurisdiction to initiate the proceeding. But the Supreme Court in the same case has made the following observation that upon: "the question whether materials before him, he should initiate proceedings or not is, therefore, in his discretion which no doubt has to be exercised in accordance with the well recognised rules of law in that behalf." Thus the point for consideration is whether the present proceeding has been initiated in accordance with the well recognised rules of law in that behalf. It would be noticed that M. P. Case No. 83 of 1975 was dropped after the petitioner had shown cause in all its details including the various litigations that had taken place. The proceeding was dropped on the 3rd of February, 1975 and the next day on precisely the same grounds the present proceeding was commenced. I do not think satisfaction of the Magistrate under the circumstances can be held to have been exercised in accordance with the well recognised rules in that behalf. The proceeding was dropped on the 3rd of February, 1975 and the next day on precisely the same grounds the present proceeding was commenced. I do not think satisfaction of the Magistrate under the circumstances can be held to have been exercised in accordance with the well recognised rules in that behalf. It is also to be noticed that the impugned order is, in fact, not an interlocutory order in as much as it is the very foundation of the proceeding and which is sought to be quashed and I do not think that an application which challenges the very foundation of the proceeding can be termed as an application against an interlocutory order. As such the argument advanced in this behalf must, be repelled. 6. For the State my attention was invited to the report made by the local Mukhiya on the 9th of April, 1974 in respect of plot No. 729 which according to him is a cremation ground. Reference was also made in this regard to the report dated the 4th February, 1975 made by the Anchal Adhikari touching the same question. On these materials it was submitted that there is likelihood of the breach of the peace in respect of this plot. It will be noticed that the learned Sub-Divisional Magistrate did not feel satisfied with the report regarding this matter. If, however, in future facts are placed before the learned Sub-Divisional Magistrate and he feels genuinely satisfied that there is apprehension of the breach of the peace in respect of this plot he may consider the desirability of initiating such a proceeding. 7. With the above observation the application is allowed and the present proceeding quashed. Application allowed.