Patna High Court
Maula Bux Ansari And Ors. vs Ram Rup Sah Alias Ram Swaroop Sah on 20 January, 1983
JUDGMENT Anand Prasad Sinha, J.
1. This application is directed against the order dated 17.4.1982 passed by the Sub-divisional Executive Magistrate, Sikrahana at Motihari, intitiating a proceeding under Section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code').
2. Earlier there was a proceeding under Section 144 of the Code which had been initiated on 15.12.1981 in between the parties, in which the petitioners were the members of the first party and the opposite party to this application was the member of the second party. That proceeding was decided on 11.2.1982, and the rule was made absolute against the opposite party.
3. Thereafter, it appears that on 15.2.1982, a petition was filed by the opposite party before the Sub-divisional Executive Magistrate stating therein that there was a land dispute giving rise to the apprehension of breach of the peace. That petition was sent to the police for enquiry and report. On receipt of police report, the learned Subdivisional Executive Magistrate started a proceeding under Section 144 of the Code on 24.2.1982.
4. By the impugned order, this very proceeding has been converted into a proceeding under Section 145 of the Code.
5. Learned Counsel appearing on behalf of the petitioner has submitted as follows:
(i) Since sixty days had not expired from the date of the order (11.2.1982) of the earlier proceeding under Section 144 of the Code, there could not have been any proceeding under Section 144 of the Code; and
(ii) That being so, the initiation of the proceeding under Section 145 of the Code was also not legal.
6. I do not find any force in the above two contentions raised by the learned Counsel for the petitioners. The earlier proceeding under Section 144 of the Code, which was numbered as Code No. 1376M/81, had been initiated on 15.2.1981. In other words, the prohibitory order had been passed on 15.12.1981. Thereafter on adjudication of the matter, after perusal of the show cause and hearing the parties, the rule had been made absolute against the opposite party.
7. The contention of the learned Counsel appearing on behalf of the petitioners that the period of sixty days will start from the date of the final order, which is in this particular case said to be 11.2.1982. is not correct. On a perusal of Sections 144(1), (2)(3) and (4) along with the proviso will make it crystal clear that the period of sixty days has to be calculated from the date on which the prohibitory order has been passed at the time of initiation of the proceeding.
8. It is never the procedure in a proceeding under Section 144 of the Code that no prohibitory order is passed in between the period initiating the proceeding and the final order. Since action under Section 144 of the Code is taken in cases of emergency for averting apprehension of breach of the peace, the prohibitory order is passed simultaneously at the time of initiating the proceeding. That is the reason that in case where such emergency condition still exists and there is apprehension of breach of the peace between the parties. Section 144(4) proviso gives power to the State Government to extend the period of the force of the prohibitory order passed by the Magistrate at the time of initiating the proceeding.
9. That being so, the proceeding in question under Section 144 of the Code, being Case No. 217M/82 will be said to be a proceeding initiating on 24.2.1982 because the prohibitory order had been passed on that date, and not 15.2.1982, the date on which the application had been filed.
10. Therefore, definitely the proceeding under Section 144 of the Code, which has given rise to the order under Section 145 of the Code, which is under challenge' had been started beyond a period of sixty days. So, the proceeding under Section 145 of the Code was perfectly permissible within the legal limits.
11. Once a proceeding under Section 144 of the Code had been initiated and on consideration of the facts and circumstances of the case, if that proceeding had been converted into one under Section 145 of the Code, it cannot be said to be against law, and that, too, in the facts and circumstances of the present case.
12. In the result, I do not find any merit in this application which fails and is dismissed.