Muni Prasad Kaneihyalal vs Sukadev Ram and Others

S. Acharya, J.—This revision has been filed against the order dated 8-9-1978 passed by an Executive Magistrate, Balasore in a proceeding u/s 144, Code of Criminal Procedure.

On the petition of the first party, i.e. the Petitioner in this case, presented before an Executive Magistrate, Balasore on 4-8-1978, that Court on being satisfied that there was ground for initiating a proceeding u/s 144, Code of Criminal Procedure, prohibited both the parties from entering into the shop house in question until further orders Thereafter, as the police reported further apprehension of breach of peace and submitted a report for a proceeding u/s 107, Code of Criminal Procedure the Magistrate directed the shop in question to be locked up by the police and to retain to be keys thereof and to prepare a list of articles in the shop after making a proper inventory of the articles therein in the presence of both the parties and some local gentlemen, and to keep those articles in the Zima of some body for sate custody. By that order both the parties were again prohibited from entering into the shop until further orders. Thereafter, the Magistrate heard the advocates for the parties on different dates on the petitions and affidavits filed by the Parties and the police reports filed In Court horn time to time. He also visited the spot on 31-8-1978. Ultimately he passed the impugned order on 8-9-1978. making therein certain observations and directions, and he rescinded the order u/s 144, Code of Criminal Procedure passed earlier by him.

It is submitted by Mr. Dhal, the learned Counsel for the Petitioner, that the Magistrate was not legally competent to It hold any local inspection in this proceeding u/s 144, Code of Criminal Procedure.

I do not agree with the above submission of Mr. Dhal. From the records I find that the Magistrate visited the spot only for the purpose of appreciating the facts and allegations presented before him from time to time by the parties and the police and to see for himself whether or not to continue the order u/s 144, Code of Criminal Procedure any further. Accordingly, one cannot find fault with the Magistrate for visiting the spot for the above purpose.

Towards the end of the impugned order the Magistrate has stated as follows:

2nd party in existing possession should continue as such and 1st party is to go to proper Court of law to establish this right, title, interest and right to possess and till that decision the 2nd party should not be allowed to be disturbed in his existing possession of the disputed shop.

Mr. Dhal contends that the Magistrate in this proceeding u/s 144, Code of Criminal Procedure was not competent to pass any order to the above effect.

From the lower Court records it appears that the statements in the impugned order regarding the fact of possession of the shop in question by the second party were made as the first party had admitted in his petition before the Court that at the time when the proceeding u/s 144, Code of Criminal Procedure was initiated the second party was in possession of that shop. But the Magistrate, while rescinding the main order u/s 144, Code of Criminal Procedure in its entirety, was not competent m this proceeding to pass the directions and orders con tamed in the above quoted portion of the impugned order. As the order u/s 144, Code of Criminal Procedure is no longer in force and the Magistrate was not legally competent to pass the said directions and orders in the impugned judgment, those directions and orders have no legal force or effect. But Mr. Dhal submits that the said direction and orders should be specifically quashed as the same, having been passed by a Magistrate would create uncalled for difficulties for the Petitioner and might cause prejudice or give rise to unwarranted Inference against him. Mr. Dhal''s apprehensions cannot be brushed aside as flimsy or unwarranted. So the said directions and orders made in the above quoted portion of the impugned order are hereby quashed.

The revision is allowed to the said extent.