D.K.SINHA, J. - (1.) THE petitioners have preferred this petition under Sec. 482, Cr PC for the quashing of 2nd and 3rd part of the order impugned passed by the O.P. No. 2, S.D.M., Simdega on 13.4.2004 in a proceeding under Sec. 144, Cr PC in a case No. M -11/2004 whereby and where -under it is alleged that though the proceeding was dropped against the petitioner initiated under Sec.144, Cr PC in the first part of the impugned order but in the
(2.) ND part it was directed to the Circle Officer, Kolebira as well as the Officer -in -Charge of Kolebira Police Station to ensure that no construction be made on the said land. By the impugned order the Circle Officer was further directed that after assessment of the valuation of the land in question as well as ascertaining the status of the land inform for further initiation of further proceeding under Sec.144. Cr PC. 2 Learned counsel for the petitioner submitted that the provision under Section 144. Cr PC empowers a Magistrate to issue order in urgent cases of nuisance or apprehended danger by directing the certain person or persons to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management. At the same time Sec.144(4) provides that no order under this Section shall remain in force for more than 2 months from the making thereof but in the present case it has been submitted that the learned S.D.M. though by the order impugned dropped the proceeding under Section 144, Cr PC as against the petitioner -2nd parly at the end of the statutory period of two months but at the same time the said Magistrate asked the Circle Officer for recommendation to initiate further proceeding under Sec. 144 Cr PC on the ground that the land in question was Government land which is highly illegal uncalled for and liable to be set aside. Reliance has been placed upon the decision reported in 1983 Cr LJ 1872 the Supreme Court of India in Acharya Jag -dishwarnand Avadhuta etc. V/s. Commissioner of Police, Calcutta and Anr. held that: We agree that the nature of the order under Sec.144 of the Code is intended to meet emergent situation. Thus the clear and definite view of this Court is that an order under Sec.144 of the Code is not intended to be either permanent or semi -permanent in character. The concensus of judicial opinion in the High Courts of the country is thus in accord with the view expressed by this Court. It is not necessary on that ground to quash the impugned order of March 1982 as by efflux of time it has already ceased to be effective. But in the present case learned S.D.M. by the order impugned asked the Circle Inspector for fresh filing of the petition for further initiation of proceeding under Sec.144, Cr PC after the proceeding was seized to continue which is misuse of the process of the Court and it was nowhere mentioned that there existed the breach of peace over the land. No document was produced by the 1st Party l.e. O.P. No. 3 Circle Officer, Kolebira (Simdega) which was admitted on the ground that the 1st Party was otherwise busy in the election work and therefore the order impugned is not sustainable for the aforesaid reasons and it is liable to be set aside.
(3.) TAKING the considered view, as well as proposition of law as propounded by the Supreme Court of India on the relevant issue this Court finds that the order impugned dated 13.4.2004 passed by the O.P. No. 2 in a proceeding under Section 144 Cr PC vide Case No. M -11/2004 is not sustainable in the eye of law and hence it is set aside.;