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1983 DIGILAW 328 (PAT)

Overseer Mahto v. State Of Bihar

1983-12-07

ANAND PRASAD SINHA

body1983
Judgment ANAND PRASAD SINHA, J. 1. The petitioners, who were the members of the 2nd party in a proceeding under Section 144 of the Code of Criminal Procedure (hereinafter to be referred to as the Code), have challenged the order dated 5-9-1983 passed in case No. 1267 (M) 83 by which a proceeding under Section 144 of the Code has been initiated in which opposite party No. 2 was the first party. 2. The proceeding had been initiated on the basis of the report of the Officer Incharge of Rani Talab police station. The dispute was for possession of plot No. 792, appertaining to Khata No. 23 having an area of 2 khatas situated in village Kanpa. By the impugned order the petitioners and opposite party No. 2 have been restrained from going over the land in dispute. 3. According to the case of the petitioners, the disputed plots of land had been purchased and thereafter their names had been mutated. Earlier, no account of enmity with the sarpanch due to Gram Panchayat election, a false claim and dispute had been raised by opposite party No. 2 leading to a proceeding under Section 144 of the Code having been drawn by the Sub-divisional Magistrate, Danapur, on 30-6-1982. Both the parties when restrained, show cause had been asked for. The proceeding was, on the basis of the report of the local sarpanch. The then learned Sub-divisional Magistrate by an order dated 7-10-1982 has made the rule of restraint absolute against opposite party No. 2 and he was restrained from going over the disputed land. Even then, a proceeding under Section 145 of the Code had been drawn on 5-11-1982 with respect to the same lands and parties which by an. order dated 11-4-1983 had been decided in favour of the petitioners. 4. According to the assertion of the petitioners, opposite party No. 2 has managed to got up a proceeding again under Section 144 of the Code. 5. It appears that the revision application has been admitted on 4-10-1983 in this Court and the further proceeding in the court below has been ordered to be stayed. 6. It has been urged that the present proceeding is not maintainable in view of the back ground that earlier the matter had been concluded both in a proceeding under Sections 144 and 145 of the Code. 7. 6. It has been urged that the present proceeding is not maintainable in view of the back ground that earlier the matter had been concluded both in a proceeding under Sections 144 and 145 of the Code. 7. During the course of argument a point has also been raised that in view of the stay order passed by this Court and considering that, as a matter of fact, 60 days have already expired, what will be the position with regard to the life of the proceeding when this application is disposed of. 8. In order to dispose of the first contention, it will be necessary to mention that a proceeding under Section 144 of the Code is mainly and prominently for taking immediate Paction, quite speedy in nature for preventing cases of nuisance or apprehended danger. While considering an action for a proceeding, the concerned Magistrate, so empowered, will have essentially to form an opinion regarding the existence of situations warranting adoption of such a measure. The effective part of the proceeding contemplates positive action resulting into restraint and thus regulating the conduct of one or several persons with the sole aim to avoid danger to human life, health or safety and all taken together disturbance of the public tranquility or a riot or an affray. 9. Therefore, one of the essentials of the proceeding under Section 144 of the Code is preventive and not punitive. Considering this aspect of the proceeding, it cannot be accepted as a matter of rule that if once a proceeding under Section 144 of the Code has already been taken up and decided that will make subsequent proceeding illegal or invalid or without jurisdiction. However, this will depend entiely on the facts and circumstances of each case. There being no punitive element in a proceeding under Section 144 of the Code, precaution has to be taken that any such proceeding may not be a substitute for an instrument of harassment and dragging any person unnecessarily in the so called litigation arising out of the proceeding repeatedly. However, this caution and care is only to be reflected by the concerned Magistrate and that is the reason that while drawing up a proceeding, it becomes necessary for the concerned Magistrate to form an opinion that there is sufficient ground. However, this caution and care is only to be reflected by the concerned Magistrate and that is the reason that while drawing up a proceeding, it becomes necessary for the concerned Magistrate to form an opinion that there is sufficient ground. That being so, the Magistrate will not act mechanically and adopt the police report for making the basis for drawing up the proceeding as if the opinion of the police in the report is conveyed by a conduit pipe and adopted in the form of an order initiating the proceeding. 10. In the instant case, opposite party No. 2 had already earlier been restrained in a proceeding under Section 144 of the Code and thereafter a dispute had been-raised resulting into a proceeding under Section 145 of the Code which has also been decided in favour of the petitioners and even thereafter while drawing up the present proceeding, the learned Magistrate ought to have considered the nature and intensity of the existence of conditions leading to a proceeding under Section 144 of the Code more critically before forming an opinion for the existence of danger leading to disturbances of the public tranquility or danger to human life. This becomes necessary to maintain the preventive character in a proceeding under Section 144 of the Code and completely separate from any punitive element which at times become motivated design of any party. 11. The court is not powerless in such circumstances and in my opinion a proceeding under Section 107 of the Code can be said to be more appropriate and equally effective. Therefore, although more than one or two proceedings under Section 144 of the Code cannot be said to be either illegal or invalid, but, of course, that has to be initiated after due care and caution and having due regard and consideration of past history of litigations in between the parties. 12. With regard to the life and continuity of the proceeding it will appeer that the proceeding has been drawn on 5-9-1983. The stay order by this Court has been passed on 4-10-1983. According to the provisions contained in sub-section (4) of Section 144 of the Code, no order shall remain in force for more than two months from the making thereof. Consequently, the proceeding comes to an end on 5-11-1983. The stay order by this Court has been passed on 4-10-1983. According to the provisions contained in sub-section (4) of Section 144 of the Code, no order shall remain in force for more than two months from the making thereof. Consequently, the proceeding comes to an end on 5-11-1983. 1 am afraid, the stay order passed by this Court, as indicated above, will not give any fresh lease of life to the proceeding or the period of two months cannot be considered after deducting the period covered by the order of stay from the date of the stay order to the date of the disposal of the application. It is because the period of two months have been fixed by the statute, and there could not be any exception for extension of the period excepting in accordance with provisions laid down in the proviso to sub-section (4) of Section 144 of the Code which runs as follows : "No order under this section shall remain in force for more than two months from the making thereof : Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct than an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the magistrate would have, but for such order, expired, as it may specify in the said notification." Under this exception also the period of six months is the final limit and there is no indication in the statute that there can be any further extension of that period. This is apparent from the provision occurring in the Code of 1898. The relevant provision in that Code was the Sub-section (6) of Section 144 of the Code which runs as follows : "No order this section shall remain in force for more than two months from the making thereof, unless, in cases of danger to human life, health or safety, or a likelihood of a riot or. an affray, the State Government by notification in the official gazette otherwise directs." Therefore, it will indicate that no time limit had been indicated in the provision of 1898 Code. an affray, the State Government by notification in the official gazette otherwise directs." Therefore, it will indicate that no time limit had been indicated in the provision of 1898 Code. The State Government, unlike the Magistrate was empowered to stretch the duration of the order even for an indefinite period until cancelled by a notification in the official gazette. 13 Therefore, when the present Code of 1973 has put a definite limit over the period of duration of the proceeding, the intention gathered behind the releant law is definitely that the two periods mentioned in the statute, one of two months by the Magistrate and another six months by the State Government, cannot be extended further at all. 14. Under the circumstances, the present proceeding has already outlived its life on 5-11-1983 and thus the proceeding has naturally come to an end.. Since the grievance was against the initiation of the proceeding and not the final order passed after show cause, the proceeding has become infructuous. 15. In the result, the application is dismissed as infructuous.