Calcutta High Court
Dayamay Bhattacharya vs Surya Kanta Sur And Ors. on 3 March, 1989
Equivalent citations: 1989CRILJ1651
Author: Monoj Kumar Mukherjee
Bench: Monoj Kumar Mukherjee
ORDER Monoj Kumar Mukherjee, J.
1. Dayamay Bhattacharya (hereinafter referred to as the 'petitioner') filed ah application under Section 144, Cr. P.C. before the learned Executive Magistrate, Barrackpore against Sri Surya Kanta Sur, Sri Sujit Kumar Sur, Sri Radheshyam Ghosh and some unknown others alleging that they were disturbing his peaceful possession in respect of the land described in the Schedule to the said application and praying for an order restraining them from interfering with his such possession. On that application the learned Magistrate passed the following ex parte order on Jan. 19, 1989.
Seen petition. Heard the ld. lawyer. O.C. Dum Dum P.S. will please enquire and report by 23-3-89 and see that no breach of peace takes place in the disputed place. O.C. will enquire if any civil case is pending in the matter.
The scheduled plots belonging to the F. P. shall not be encroached or dug by the members of the O.P. in any way. There shall be no violent incident over the issue. Legal protection be given to the F.P.
2. Alleging non-compliance with the above order, in spite of service thereof the petitioner moved this Court by filing an application under Article 226 of the Constitution of India and obtained certain interim orders. Aggrieved thereby Surya Kanta Sur and Sujit Kumar Sur have filed an application praying for vacating the said interim order.
3. Having heard the learned Advocates appearing for the parties and considering the facts and circumstances of the case I am of opinion that the writ application itself is not at all maintainable. Admittedly the writ application has been filed to enforce compliance with an order purportedly passed under Section 144, Cr. P.C. but then I find that same has not been made in accordance with law. A plain reading of Section 144 of the Code of Criminal Procedure will unmistakably show that before an Executive Magistrate can pass any order thereunder, certain requirements are to be complied with. While considering this aspect of the matter in the case of Babulal Parate v. State of Maharashtra , the Supreme Court observed that to act under Sub-section (1) of Section 144, the Magistrate himself had to form an opinion that there was sufficient ground for proceeding under that section and immediate prevention or speedy remedy was desirable. The Court further pointed out that the sub-section also required the Magistrate to make an order in writing and state therein the material facts by reason of which he was making the order thereunder. In reiterating the above proposition, the Supreme Court further pointed out that the latter part of Sub-section (1) of Section 144 specifically mentioned that the order of the Magistrate should set out the material facts of the case.
4. In the case of Jatindra Nath Sikdar v. State reported in 1967 Cri LJ 1716 (Cal), it was observed by a learned Judge of this Court, while dealing with the requirements of the proceeding under Section 144, Cr. P.C., as under (at page 1717) : ---
The foundation of the Magistrate's order for a proceeding under Section 144 or 145 of the Code is his satisfaction on materials before him that there is an apprehension of breach of the public peace. Unless he is satisfied in that regard, he would have no jurisdiction to draw a proceeding under either of those two sections. In order to give the Magistrate the jurisdiction to draw up the proceeding concerned, there will have to be his satisfaction in the above matter, and if the learned Magistrate does not mention about this satisfaction, his jurisdiction is lost.
5. After making the above observation, the Court quashed the proceeding in that case, as there was nothing on record therein to indicate the learned Magistrate's satisfaction about apprehension of breach of peace.
6. In a subsequent decision of this Court in the case of Amulya Ratan Haider v. Bidya Bhusan Naskar reported in (1979) 2 Cal HC Notes 127, the above observation in the case of Jatindra Nath Sikdar v. The State 1967 Cri LJ 1716 (Cal), was quoted with approval. I Though the case of Amulya Ratan Haider (supra) related to one under Section 145 of the Code of Criminal Procedure, the requirements of both Sections 144 and 145 are similar. In that case it was held:
(i) To assume jurisdiction to initiate a proceeding under Section 145 of the Code, the Magistrate must obtain satisfaction that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of the peace. As the foundation for the proceeding is satisfaction, absence thereof will make the proceeding without jurisdiction and void ab initio.
(ii) If the Magistrate initiates the proceeding with the requisite satisfaction but omits to state the grounds of his such satisfaction, the order will be a defective one and the validity of such order will have to be judged by the test of prejudice,
(iii) Whether prejudice has been caused or not will depend upon the facts and circumstances of a given case and for determining the same the fact whether the objection could and should have been raised at the earliest possible opportunity will be required to be considered.
7. Judged in the context of the above principles of law, the Order dated Jan. 19, 1989, which is the basis for moving this Court in the writ jurisdiction, cannot be sustained. In the instant case, the learned Magistrate did not record any satisfaction that there was any breach of the peace which necessitated initiating a proceeding under Section 144, Cr. P.C. so as to empower him to issue directions in accordance therewith. On the contrary, he called for a report from the Officer in-Charge of Dumdum Police Station, obviously with the purpose of ascertaining whether there was any apprehension of the breach of peace or not as alleged in the application. In other words, to obtain satisfaction as to whether there was an apprehension of breach of peace, the learned Magistrate called for such a report. The order of the learned Magistrate therefore must be held to be without jurisdiction. Consequently the writ application must be held to be not maintainable.
8. I, therefore, reject the application under Article 226 of the Constitution of India, treating the same as on day's list. All interim orders are vacated No order is, therefore, necessary on this application for vacating the interim order.
9. There will be no order as to costs.
10. Let it be recorded that this order has been passed without prejudice to the rights and contentions of the parties.