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2000 DIGILAW 179 (ORI)

DHIRENDRANATH SWAIN v. HADI RAUL

2000-03-28

P.K.TRIPATHY

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P. K. TRIPATHY, J. ( 1 ) LEARNED counsel for the petitioner is present. None appears for the opposite party. ( 2 ) HEARD learned counsel for the petitioner and the revision is disposed of in the following manner :-PETITIONER is 2nd party member in Cri. Misc. Case No. 629/96 of the Court of Sri B. P. Sarangi, Executive Magistrate, Bhubaneswar. That proceeding was initiated u/s. 144, Cr. P. C. as per order dated 17-12-96. Both the parties in that proceeding claimed right and possession over the disputed case land. On 3-2-1997 learned Executive Magistrate heard argument and on 25-2-1997 passed the impugned order directing the parties to maintain status quo and not to change the nature and character of the suit until the matter is decided by the competent Civil Court. ( 3 ) LEARNED counsel for the petitioner rightly argues that with the expiry of the period of two months from the date of initiation of the proceeding u/s. 144, Cr. P. C. the prohibitory order was no more enforceable nor the Magistrate had jurisdiction to decide the matter on merit while acting u/s. 144, Cr. P. C. and therefore the order dated 25-2-1997 is illegal being without jurisdiction. ( 4 ) TIME and again this Court has said in several reported and unreported decisions that to decide the factum of possession with a view to avoid apprehension of breach of peace and to maintain public tranquillity in the locality a proceeding under Section 144, Cr. P. C. is inappropriate and if the requirement of sub-section (1) of Section 145, Cr. P. C. is satisfied then proceeding u/s. 145, Cr. P. C. is the appropriate course which should be resorted to. Learned Executive Magistrate has failed to follow the law in the aforesaid manner for no good reason. Apart from that, learned Magistrate should have remained conscious of the position of statutory law in sub-section (4) of Section 144, Cr. P. C. and should have refrained from passing the impugned order on 25-2-1997 i. e. after expiry of the period of two months from the date of prohibitory order u/s. 144 (1) Cr. P. C. passed on 17-12-96. Needless to say that the said order having no sanction of law was passed without jurisdiction. ( 5 ) ACCORDINGLY, the impugned order is set aside and the Criminal Revision is allowed. Petition allowed.