Jatindra Chandra Roy v. Nayan Ram Phukan and Ors. — 1995 DIGILAW 18 (GAU)

This criminal revision is directed against the order dated 12.12.94 passed in CaseNo.509m of 1994 under section 144 CrPC clause (1) and (2) by the learned Executive Magistrate, Guwahati by virtue of which a proceeding under section 144 CrPC is so initiated restraining the second party who figures here as petitioner from entering into the schedule land with immediate effect and until further orders. The petitioner, Jitendra Chandra Roy and others have thus preferred this revision under section 397 CrPC and Article 227 of the Constitution of India challenging the impugned order on the ground so mentioned in this criminal revision petition and their learned counsel Mr. B. Malakar has submitted that in the background of the facts and circumstances of the case, the promulgamation of section 144 CrPC proceeding exparte even exercising powers under section 144 (2) CrPC is bad in law. Mr. B. Malakar, learned counsel for the petitioners and Mr. S. Medhi, learned senior counsel for the respondents are heard at length. The facts of the case in brief is that at the instance of the petition so filed by the respondents Nayan Ram Phukan and others, the impugned order was so passed restraining the petitioner who figured as the member of the second party in the said proceeding as not to go over the land in proceeding. The said impugned order is thus challenged by preferring this revision that the impugned orders is so passed on erroneous presumption. It is also brought in notice that there was no material before the learned Executive Magistrate for his satisfaction as to initiate the proceeding since even the police report was not so called for and it is just on the basis of the petition of the respondents that not only 144 CrPG proceeding was initiated but even the petitioner as opposite party was restrained to go over the land. It is submitted that there was no justification of passing such exparte order restraining the petitioner without giving the details of the circumstance in the impugned order which is so mandatory and the impugned order, it is further pointed out, does not reveal relating to any emergency so existing. It is submitted that there was no justification of passing such exparte order restraining the petitioner without giving the details of the circumstance in the impugned order which is so mandatory and the impugned order, it is further pointed out, does not reveal relating to any emergency so existing. In this connection the provision of section 144 (1) and (2) CrPC are read and it is emphatically thus argued that since the impugned order does not reveal the material facts of the case and it also does not speak of the emergency so existing giving sufficient material in passing exparte order the learned counsel for the petitioners has submitted that the impugned order so passed is in clear violation of the provisions of law and in passing the exparte order restraining the opposite party figuring here as petitioner, it was incumbent on the part of the learned Executive Magistrate as to show the emergency of the situation which sudden the consequence of which, in his considered opinion would have been sufficiently grave if restrainment of the petitioner for going over the land in question would not have been made which in the present case has not been done, since the legislative mandate has not been strictly followed, hence the prayer is that the impugned order initiating a proceeding and restraining the petitioner for going over the land in proceeding arbitrarily be thus set aside. In support of his contention, the learned counsel for the petitioner has also referred to some of the reported cases and they are (1987) 2 GLR 338 (Acharya Atnatirthanand Avaduta & others vs. State of Tripura) and AIR 1951 SC 884 (Babulal Parate vs. State of Maharashtra & others). In the background of the decisions arrived at in the above mentioned reported cases, it is vehemently argued that the Executive Magistrate are expected to exercise the powers so given under section 144 CrPC with due care and caution because it may deprive the citizens valuable rights so conferred by Part III of the Constitution of India. By going through the impugned order in the instant case as submitted it will transpire that the learned Magistrate has not shown cogent reason by giving the details of the material facts for his Satisfaction as to take immediate action by taking the matter to be of emergency restraining the opposite party petitioner for going over the land in proceeding. By going through the impugned order in the instant case as submitted it will transpire that the learned Magistrate has not shown cogent reason by giving the details of the material facts for his Satisfaction as to take immediate action by taking the matter to be of emergency restraining the opposite party petitioner for going over the land in proceeding. The learned Executive Magistrate, has in such circumstance to satisfy that immediate protection of particular act is necessary to counter act the danger of public safety which in the instant case has not been done. 2. Mr. S. Medhi, learned counsel for the respondents on the other hand has submitted that though the proceeding in question is initiated on the basis of the petition so filed by the respondents figuring as petitioner before the learned Executive Magistrate supported by affidavit but the learned Magistrate before passing the impugned order felt satisfied and did not think it necessary as to call a for a police report and by passing the impugned order restraining the petitioner who figured as opposite party in the proceeding also in that continuity passed an order that the second party ie the petitioner is at liberty to appear before him for filing any written objection, if any, for modification/cancellation of the said exparte order within seven days from the date of receipt of the order and the petitioner instead moving the matter before him for modification or cancellation of the exparte order has knocked the door of his Court which should not have been done. 3. After hearing both the sides lawyers and taking into consideration the facts discussed above, I find that there is much of strength in the argument so advanced by the learned counsel for the petitioners who has challenged the impugned orders on the grounds detailed in this criminal revision petition. I also find that the impugned order does not reveal the material facts which was so placed before the learned Executive Magistrate for passing the impugned order basing his satisfaction over the same and particularly for passing exparte order under sub-section (2) of the section 144 of the CrPC restraining the petitioners, second party to go over the land in question. That emergency has to be explained in the order itself. That emergency has to be explained in the order itself. By simply giving the liberty to the petitioner (second party) as to appear and file written objection for modification and/or cancellation of the exparte order, in my considered opinion will not exonerate the learned Executive Magistrate as to pass orders under section 144 (1) CrPC without the caution and without detailing the material facts which is so mandatory on his part as to do while passing such order showing his satisfaction and also showing the circumstance of emergency while restraining any of the parties for going over the land in proceeding. Taking that view the impugned order thus warrants interference. The impugned order clawed 12.12.94 so passed by the learned Executive Magistrate, Guwahati in Case No.509 of 1994 is thus hereby set aside. This criminal revision petition is allowed. However, it is clear that if the situation so demands, the learned Executive Magistrate may take appropriate action under section 144 CrPC strictly according to the provisions of law.