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1981 DIGILAW 297 (CAL)

Santosh Nayak v. Pradip Moulik

1981-07-31

JITENDRA NATH CHAUDHURI

body1981
ORDER This revisional application by two petitioners is directed against an order dated 12.6.79 passed by the learned Executive Magistrate, 3rd Court, Calcutta converting the proceedings of Case No. M/299 of 1979 under S. 144 of the Code of Criminal Procedure into one under S. 145 of the said Code. The order under S. 144(2) of the Criminal Procedure Code was passed on 10.4.79 and the same was converted into proceeding under S. 145 of the Criminal Procedure Code on 12.6.79. The petitioners have prayed for quashing of the entire proceedings. 2. Mr. Sanyal, learned Advocate on behalf of the petitioners has submitted that the order under S. 144(2) of the Code of Criminal Procedure, 1973 remained in force for two months from the dote of making thereof and hence was no longer in force on 12.6.79 when the said proceeding under S. Sec. 144 was converted into a proceeding under S. 145 of the said Code, and the learned Magistrate was functus officio on 12.6.79, since the statutory sixty days had expired on 9.6.79. He submitted that since the said order under S. 144(2) of the said Code was not in existence on 12.6.79, there was no existing order to be converted. Apart from this submission which, if accepted, will dispose of this application in favour of the petitioners, Mr. Sanyal also urged other points to show that the learned Magistrate after converting the said proceeding under S. 144 into a proceeding under S. 145 of the said Code did not proceed in accordance with law and further that the drawing up of the said order under S. 145 of the said Code was itself bad, since according to him a formal order is necessary in the shape of a "speaking order". 3. Mr. Sanyal has relied upon the cases reported in 1978 CHN 479 (Paresh Ch. Hati & Ors. v. Ahitosh Panda & Ors.), 1963 Cr L.J. 1872 (SC) (Acharya Jagdishwaranda Avadhuta & Ors. v. Commissioner of Police Calcutta & Anr., and 13 CWN 195 (J.A. Thomson v. Emperor) in support of his contention that the Executive Magistrate was functus officio on 12.6.79 when he passed the impugned order. 4. In 1978 CHN 479 a Division Bench of this Court held that under S. 116(6) of the said Code the proceedings stood ipso facto terminated as goon as the statutory period of six months provided for therein expired. 4. In 1978 CHN 479 a Division Bench of this Court held that under S. 116(6) of the said Code the proceedings stood ipso facto terminated as goon as the statutory period of six months provided for therein expired. Further continuance of the proceeding, was illegal and without jurisdiction. Any attempt to validate the continuance of the terminated proceedings or revival of the same was of no avail. 5. In 1983 Cr. LJ 1872 the Supreme Court has held that the proviso to S. 144(4) which have the State Government jurisdiction to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Magistrate is clearly indicative of the position that Parliament never intended the life of an order under S. 144 of the said Code to remain in force beyond two months. 6. In 13 CWN 195, it has been held by a Division Bench of this Court that the order issuing notice under S. 144 of the said Code could remain in force for two months from its date and the confirmation of the said order on a subsequent date, on cause being shown could not extend the period of its operation beyond those two months. The order issuing notice under S. 144 of the said Code in that case was as follows:- .....................“Issue notice under S. l44 Cr. P.C. not to proceed further with the sinking of the pit. Cause to be shown on 16th July, 1908 against this order.” 7. Mr. Sur, learned Advocate appearing on behalf of the opposite party, has submitted that the period of two months will only begin to run when notice is issued upon the opposite party calling upon them to show cause. He has urged that such notice was only issued for the first time on 21.4.79 by the said learned Magistrate and that the order dated 10.4.79 should not be construed as an order issuing any notice upon the opposite party calling upon them to show cause in view of the language used in the said order dated 10.4.79. He has relied on the decision reported in AIR 1942 Patna 414 in support of the said contention. He has relied on the decision reported in AIR 1942 Patna 414 in support of the said contention. This is a Single Bench decision which relies upon another Single Bench decision, reported in AIR 1935 Patna 224 (Puran Singh v. Rom Keor) which in turn, relied upon the decision reported in 13 CWN 195, for the proposition that the period of sixty days from the date when the first notice under S. 144(4) of the said Code is issued Mr. Sur has therefore, also relied upon the decision, reported in 13 CWN 195 for his submission that the period of sixty days will only run from the issue of the first notice under S. 144 of the said Code. 8. The Order dated 10.4.79, 20.4.79, 21.4.79 and 12.6.79 are set out below: - Under Section 144(2) Cr. P. Code Order No. 1 Date 10.4.79. This is a petition u/s 144(2) Cr. PC 1973 Register. Gone through the petition seen the affidavit Heard Considered. The petitioner's mother is stated to be ailing. The petitioner's father has separate flat in the same premises. The opposite parties be directed to show cause by 20.4.79 as to why the prayer of the petitioner as made in the petition, shall not be allowed. Since the user of bathroom and latrine is of dire necessity, it is ordered U/s 144(2) Cr P.C. that the O.C., Burtola P.S. shall see that the O.P.8 are restrained from causing hindrance to the user of the common bath and Jatrine by the ailing mother of the petitioners at the disputed premises O.C. shall also see that no breach of peace crops up at the locale." Order No. 2 Dated 20.4.79 “Petitioner is present. Put up tomorrow for Older.” Order No. 3 Dated 21.4.79 "The petitioner is present Considered the repot. Issue notice upon the O.P calling upon them to show cause by 11.5.79 as to why they shall not be restrained from causing of the obstruction to the user petitioners of the bathroom Privy water and kitchen of the disputed flat and as to way they shall not be restrained from causing blockade to the passage to bath, privy etc. Issue notice upon the O.P calling upon them to show cause by 11.5.79 as to why they shall not be restrained from causing of the obstruction to the user petitioners of the bathroom Privy water and kitchen of the disputed flat and as to way they shall not be restrained from causing blockade to the passage to bath, privy etc. meanwhile order dated 10.4.79 shall continue Requisites at once." Order No. 8 Dated 12.6.79 "The record is put up today The parties are present Shri Kalachand Chatterjee files an affidavit stating therein, that both the parties were inducted to the respective rooms and both have equal right to use the bathroom privy, latrine and kitchen also of that said flat. He has also said that he has not obstructed the common passage leading to the bath room, latrine privy and kitchen at any point of time. This gives a go bye to the defence case that the passage was closed by Kalachand Chatterjee. Now the restraint order was passed after the closure of the passage. So in order to get back the possession of the bath, privy and latrine no mandatory order under S. 144(2) Cr PC can be passed. Considering the circumstances and police report at a proceeding under S. 145 Cr PC be initiated. Fix 5.7.79 for evidence of both parties. The O.P. shall cause attendance of P.K. Banerjee as witness at that date, as learned counsel for O.P. have submitted by a Pin. that he may be called. Meanwhile O.C. shall keep strict vigil at the locale that the parties do not cause anything that may occasion the breach of the peace." The order passed in between 21.4.79 and 12.6.79 continued the ad interim order passed on 10.4.79." 9. In my view the order dated 10.4.79 is clearly a notice issued upon the opposite party calling upon them to show cause by 20.4.79 although the phrase used is "directed to show cause". Thereafter, when the opposite party did not show cause by 20.4.79 they were given another chance till 11.5.79 to show cause by the order dated 21.4.79. It is significant that in the order dated 10.4.79 the opposite parties were directed to show cause by a particular date, viz., 20.4.79. It must be that this was a notice issued upon the opposite parties to show cause by the said date. It is significant that in the order dated 10.4.79 the opposite parties were directed to show cause by a particular date, viz., 20.4.79. It must be that this was a notice issued upon the opposite parties to show cause by the said date. The order dated 10.4.79 was an order under S. 144(2) of the said Code as the order itself clearly shows. Since it was an order under S. 144(2) it is clearly attracted under the provisions of S. 144(4) of the said Code, S. 144(4) provides, subject to the proviso thereunder, as follows:- "No order under this section shall remain in force for more than two months from the making thereof." 10. Clearly the order dated 10.4.79 which was an order under S. 144(2) of the said Code, was an order made under the subsection of S. 144 and hence would come within the plain meaning of the language of S. 144(4) of the said Code. Section 144(2) begins by using the words "an order under this section...................", thereby making it clear that the ex parte order passed therein was an order under "this Section" (i.e. S. 144) of the said Code. 11. On the facts and circumstances of this case, respectfully relying on the decisions cited by Mr. Sanyal on behalf of the petitioners, I hold that the learned Magistrate was 'functus officio' when he purported to pass the impugned order dated 12.6.79, since the order under S. 144(2) of the said Code passed on 10.4.79 by the said Magistrate was no longer in force on 12.6.79. I accordingly, set aside the impugned order dated 12.6.79 passed by the learned Executive Magistrate, 3rd Court, Calcutta in Case No. M/299 of 1979 and quash the proceedings pending in respect of the said case No. M/299 of 1979. This application succeeds. 12. The Rule is made absolute. The records be sent down forthwith. Impugned order quashed; Rule made absolute.