Decided on April 08,1958

Kala Meah Appellant
RAI MOHAN SAHA Respondents

Cited Judgements :-



J.N. Datta, J.C. - (1.)THIS is a criminal reference, made by the learned Sessions Judge, recommending that the order of the S. D. M., Sonamura dated. 10 -12 -1956,, passed under Section 144 Cr. P. Code, in Cr. Misc. Case No. 82 of 1956, ought to be set aside.
(2.)THE dispute relates to Melaphar Bazar, and is in respect of the right to collect loll in the Bazar On 8 -12 -5R, Rai Mohan Shah (Party No. 1) applied to the S. D. M. for action under Section 144, against the second party consisting of Kala Meah and others. The learned S. D. M. asked the station Officer to enquire and report. The said Officer complied, and reported on 10 -12 -56 that there was imminent danger of a breach of peace. He also reported that in a civil suit between the parties, the Munsiff had granted a temporary injunction, against the second party, but the same had not till then been served on the second party, although the second party had gone up in appeal against that order to the District Judge. According to him, the second party was in possession and therefore both the parties should be restrained. On receipt of this report of Police, the S. D. M. at once passed an ex parte order restraining both the parties from entering the Bazar, or doing anything which might disturb the peace. He made the order for 30 days, or till the decision of the appeal by the District Judge, whichever might be earlier. It transpires that the appeal to the District Judge, later failed, and the order of temporary injunction against the defendants (second party) was maintained.
The order has thus spent itself, long ago, and it appears from the explanation of the learned S, D. M., that on previous occasions also, resort was had to Section 144.

(3.)A Magistrate gets jurisdiction under Section 144, if among other things required by the section, he is satisfied that "an immediate prevention or speedy remedy is desirable" (Sub -section (1) of Section 144). Iri the present case his order i;; silent on this point, and bad on that account. Again an ex parte order can be issued only "in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the" order i? directed" (Sub -section (2) of Section 144).
But it does not appear from the record of the Magistrate that such was the case. Further it was necessary that the Magistrate should have after passing this ex parte order, given the parties an opportunity of being heard, and then either confirmed, modified or vacated the said order. But this was not done, showing that the Magistrate is neither conversant with the procedure and law on the subject, nor did he care to study them, and such lack of application has to be strongly disapproved.

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