Mahamaddi Mollah and others vs Empress

This rule was issued upon the Magistrate of the District to show cause why the orders purporting to be passed under sec. 144, Cr. P.C., on the 25th and 27th of June and the 1st and 2nd of July, should not be set, aside on the ground that they do not fall within the purview of that section; and pending the hearing of the rule the proceedings were stayed. No cause has been shewn in this matter; but the Deputy Magistrate has submitted an explanation; but there is nothing on the record, or in the explanation to show that there was any such emergency in the matter which required him to take action under sub sec. (2), sec. 144, Cr. P.C., as he has done. It is only in cases coming under sub-sec. (2) that the law declares that the order may be made ex parte; and, as we have already pointed out, there is nothing on the record, or in the explanation, to show that the matter was of such a nature that the circumstances did nut admit of the service in due time of the notice upon the person against whom the order is directed. The law provides that ordinarily in proceedings under sec. 144, Cr. P.C., notice should issue upon the person against whom the order was directed. It is only in cases coming under sub-sec. (2) that service of notice is dispensed with. Under such circumstances we set aside the order, leaving the Magistrate to lake such steps as he may think necessary, in case he considers any further action is required. We accordingly make the rule absolute and set aside the order referred to in it. This order will apply to Rule No. 540 of 1898.