Patna High Court - Orders
Wakil Yadav vs State Of Bihar & Ors on 11 April, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.27483 of 2010
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Wakil Yadav S/o Ram Ashreya Yadav, R/o Village: Giridhar Chak, P.S.
Athmalgola, Distt-Patna.
.... .... Petitioner/s
Versus
1. State Of Bihar
2. Nand Kishore Mahto S/O Late Ram Briksha Mahto
3. Pawan Kumar Mahto S/O Late Ram Briksha Mahto, both residents of :
Giridhar Chak, P.S. Athmalgola, Distt-Patna.
... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Manish Kumar-2, Adv.
For the Opposite Party/s : Mr. Yogesh Chandra Verma, Sr. Adv
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
4 11-04-2012Petitioner/second party being aggrieved by and dissatisfied with the order dated 03.06.2010 passed by Additional Sessions Judge-IV, Patna in Cr.Revision No. 397/2009 whereby and whereunder he had dismissed the revision as well as against the order dated 11.04.2009 passed by SDM, Barh in Misc.Case No. 13(M)/2009 under Section 144 Cr.P.C. whereby and whereunder vacated the order against first party and made it absolute against second party, filed instant petition.
2. The facts in brief as is evident, a proceeding under Section 144 Cr.P.C was initiated vide order dated 13.02.2009 with regard to land bearing Khata No. 170, Khesra No. 164, area 6 decimal having boundary, North-Road, South- Plot No. 166, East-House of first party, West- remaining portion of the disputed land, on a petition filed on behalf of the first party/which was finally disposed of vide order dated 11.04.2009 that led 2 litigation up to present stage.
3. In accordance with Section 144 (4) of the Cr.P.C. the life of the prohibitory order passed under Section 144 of the Cr.P.C. is confined only to the extent of sixty days beyond which the order impugned become non-est in the eye of law. However, taking into account submission of the rival parties, it required some detailed discussion.
4. It has been submitted on behalf of the petitioner that any order passed under Section 144 Cr.P.C. touching the right, title and interest of the parties happens to be bad and in contravention of the law. So far order impugned is concerned, from bare perusal of the same, it is evident that the learned lower court had taken into consideration those facts which are not on the record as well as scrutinized the issue like a Civil Court. The aforesaid process adopted by the learned lower court happens to be bad and in likewise manner, the Revisional Court also overlooked the same. Hence, in spite of having expiry of the period during which the order impugned happens to be effective one, the order in its present form is bound to affect future interest of the party, hence the same be adjudicated upon and be decided accordingly.
5. On the other hand, the learned lawyer for O.P. No.2 opposed the prayer and submitted that by efflux of time so 3 granted under Section 144(4) of the Cr.P.C., just after expiry of 60 days any order passed under Section 144 Cr.P.C became non-est in the eye of law and so the petitioner has got no cause for apprehension with regard to future right. To support its plea, also referred 2002(1) PLJR 68, AIR 1940 (Patna) 471, AIR 1940 (Patna) 185.
6. Learned Additional P.P endorsed the view and submitted that when the order impugned has lost its validity and sanctity then it will be worthless to decide the issue.
7. Whether any order passed under Section 144 Cr.P.C. can be taken into consideration even after expiry of its prescribed tenure, has so many times been taken into consideration. In 1988 BBCJ 234 at para-27 after taking into consideration the submission raised on behalf of O.P. on this score as well as taking into consideration the other decisions, it has been held:-
"Thus, this contention of the learned counsel for the O.P. fails, as an order even if it has spent its force can be set aside if it is found to be illegal, and without jurisdiction"
8. So far scope of 144 Cr.P.C. is concerned and nature of order that could be passed there under has been taken into consideration by the three Judges bench of the Hon'ble Apex Court as reported in 1982(1) SCC 71 wherein at 4 paragraph-27, it has been held:-
"The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquility. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to override temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail. It is further well settled that the section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlements to rights have already been adjudicated and have become the subject-matter of judicial pronouncements and decrees of civil courts of competent jurisdiction then in the exercise of his power under Section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquility the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, if there be such and the lawful exercise thereof rather than in suppressing them. In other words, the Magistrate's action should be directed against the wrong-doer rather than the wronged. Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant. "5
9. As such, it is evident that the executive Magistrate has been forbidden to adjudicate or decide dispute of civil nature or question of title to properties or entitlement to rights. The section prescribes a limit to be adopted by the learned Magistrate to the extent of deciding only the status of the parties over the disputed land.
10. Now coming to the order impugned, though it happens to be a spent up force but it speaks about the police report which is not the basis of initiation of the proceeding as is evident from the initial order dated 13.02.2009 divulging the fact that the proceeding was initiated on a petition filed on behalf of the first party (O.P.2nd Party). Then basing thereupon in consonance with the documents accepting/rejecting certainly goes out of purview of Section 144 Cr.P.C.
11. Consequent thereupon, the order impugned is found to be devoid of merit as well as beyond the scope of Section 144 Cr.P.C.. Hence, the same is set aside. Petition is allowed.
(Aditya Kumar Trivedi, J) perwez