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2002 DIGILAW 321 (GAU)

Premoda Medhi v. Gauhati Roller Flour Mills Ltd.

2002-08-02

AFTAB H.SAIKIA

body2002
A.H. SAIKIA, J.— Heard Mr. A.K. Goswami, learned counsel for the petitioners and also heard Mrs. M. Hazarika, learned counsel appearing for the respondents. 2. The order dated 11.6.02 passed by the learned Sub-Divisional Magistrate, Kamrup, Guwahati in Case No. 209M/ 2002 under Section 144 Cr.P.C. is under challenge in this criminal revision. 3. The impugned order in which the legality and validity is questioned is extracted under ;- "ORDER Seen the petition filed by one Sri Kishor Sarma supported by an affadavit and heard the learned advocate on behalf of the 1st party petitioner. I am satisfied that mere is every possibility for serious and immanent breach of peace between the parties as well as public tranquility which may even lead to riot / affray concerning the land as mentioned in the" schedule below and hence a proceeding u/s 144 Cr.P.C. is ordered to be drawn restraining the 2nd party members from entering into the disputed land with immediate effect and until further order. The 2nd party members are, however at liberty to appear before the court on the date fixed along with their written objection and other connected documents if any for cancellation / modification of the exparte order. O.C. Dispur police station is directed to execute the order and report compliance. Fixed 3.7.02. Schedule of the land : Land measuring 1 katha 5 leachas covered by Dag No. 963 patta No. 288 under Beltola mouza of Japorigog and bounded by :- North- Srinagar path, East- Income tax office, South- G.M.C. Hospital, West- A.B.C. Sd/- Illegible Sub-Divisional Magistrate Guwahati Dated 11.6.2002 No. 100 Copy to the O/C, Dispur police station. He is directed to execute the order and report compliance immediately. Sd/- Illegible Sub-Divisional Magistrate." 4. Mr. Goswami, learned counsel for the petitioner has contended that on the face of the order itself the impugned order cannot be sustained. According to him the learned Magistrate in passing the ex-parte order restraining the petitioner/2nd party from entering into the disputed land has totally failed to record the reasons regarding for urgency and necessity in passing this order. It is incumbent on the part of the learned Magistrate to render such an ex-parte order restraining to petitioners stating the facts constituting emergent situation which necessitated passing of the order. In the instant case, according to Mr. It is incumbent on the part of the learned Magistrate to render such an ex-parte order restraining to petitioners stating the facts constituting emergent situation which necessitated passing of the order. In the instant case, according to Mr. Goswami the learned Magistrate has not recorded such reasoning in exercise of his power under Section 144 (2) Cr.P.C. To drive home his submission Mr. Goswami has referred to a reported case (1986)2 GLR-115 in Abdus Sattar & 26 others Vs. Juran Chandra Sarkar and another, wherein this Court categorically ruled that if a nuisance or apprehended danger is such that an ex-parte restraint order is absolutely necessary the Magistrate must render an order stating the facts constituting the emergent circumstances and thereafter may pass a prohibitory order u/s 144(2) of 'the Code'. Defending the impugned order Mrs. Hazarika has vehemently argued that there is no illegality or irregularity committed by the learned Magistrate and the same is also apparent on his order itself. In passing the impugned order the learned Magistrate was absolutely satisfied as regards constituting the emergent situation and circumstances. His source of satisfaction was clearly based on the application submitted by the respondents accompanied by an affidavit. 5. Section 144(1) and (2) of the Cr.P.C. reads as follows :- "144. Power to issue order in urgent cases of nuisance or apprehended danger ;- (1) In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray. (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex-parte." An ordinary reading of the above provisions goes to show that in urgent cases of nuisance or apprehended danger, a power has been vested upon the District Magistrate or Sub-divisional Magistrate or any other Executive Magistrate so authorised by the State Government, to take necessary steps by issuing written order directing the person concerned to abstain from doing a certain act or acts which the Magistrate considers that such direction is likely to prevent or tends to prevent, obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety, or a disturbance of the public tranquility.-In cases of emergency, the Magistrate has also been authorised to pass an ex-parte order. 6. It is settled law that the Magistrate is authorised to act under Section 144( 1) and (2) Cr.P.C. only when he is satisfied as regards the existence of such emergent or urgent circumstances and such urgency must be reflected in the order itself with reasons thereof. A mere statement that he is satisfied that there is every possibility of serious breach of peace between the parties as well as public tranquility, is not sufficient to exercise power under Section 144 (1) and (2) of the Cr.P.C. A duty is cast upon the Magistrate to project the factual situation pertaining to urgent and emergent circumstances in rendering the ex-parte order. 7. Having regard to the Abdus Sattar's case (supra) and upon hearing the learned counsel for the parties, I am of the considered opinion that the impugned order does suffer from illegality and infirmity. Consequently, the impugned order dated 11.6.02 is hereby quashed and set aside. In the result, this revision succeeds. No costs. Interim order, if passed earlier, shall stand vacated.