- (1.) INVOKING Article 226 of the Constitution, the petitioner has approached this court for enforcement of an order passed in connection with a proceeding under Section 144 CrPC by the Executive Magistrate, 3rd Court, Alipur, South 24 -Parganas on 3lst July 2012. Going through the relief sought for, I find the petitioner is seeking enforcement of the order passed by in connection with the aforesaid proceeding under section 144(2) CrPC. The order so passed is quoted below; " O/C. Bishnupur P.S. to enquire and report by 03/09/12. He should see that no breach of peace takes place and to ensure that the O.Ps. do not create disturbance during construction (minor repairing) over the scheduled property by the F.P."
(2.) IT goes without saying an Executive Magistrate assumes jurisdiction to pass an ex parte restraint order in exercise of the power conferred under section 144(2) CrPC only when by setting out the material facts of the case he recorded his satisfaction as to the apprehension of breach of peace and on such satisfaction found it necessary in order to prevent the breach of peace and public tranquility, a restraint order be passed and not otherwise.
(3.) HOWEVER , on the face of the order aforesaid, it is manifest that the essential requirement of law is explicitly absent in the order in question. The the Learned Magistrate having called for a report from the Officer -in -Charge of Bishnupur P.S., it was obvious that he was not satisfied on the materials placed before him that there was any apprehension of breach of peace and to prevent breach of peace and public tranquility, a restraint order is necessary. The report has been called for by the court concerned so as to satisfy itself about the aforesaid position. Last but not the least, the order in question was passed on 3lst July 2012 and even assuming that was a correct order, however by efflux of time and on expiry of period of sixty days, the order has lost its force and thus the question of enforcement of such order does not at all arise. This application has no merit and stands dismissed and disposed.;