MOHD SHAFI KHAN Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS is an application under Section 482 Cr.P.C. for quashing the notice dated 8-7-1975 issued to the petitioners under Section 144 Cr.P.C. and subsequent proceeding on the basis of this notice. The allegations of the petitioners are that Mohd. Sha5 Khan petitioner is the bhumidhar of plots nos. 178, 179 and 189 situate in village Butrara district Muzaffarnagar and that he is having a cattle market on those plots in partnership with Israil, petitioner no 2 since 1951. Recently, the Zila Parishad had started another cattle market in village Butrara and had given the same to the kadar. The Zila Parishad and the kadar are interested in closing the cattle market of the petitioners in the interest of their newly opened market. They resorted to several proceedings with a view to interfere with the holding of the cattle market by the petitioners and so the petitioners filed a civil suit and obtained an interim injunction against the Zila Parishad and the kadar on 3-3-1975. Subsequently the Zila Parishad succeeded in getting the District Maaistrae interested who was the Ex Chairman of the Zila Pariihad and at his instance the Sub-Divisional Magistrate passed orders under Section 144 Cr.P.C. against the petitioners. An earlier order under Section 144 Cr.P.C. was passed on 18-3-1975 when Mohd. Shafi Khan filed a Cr. Misc Petition No. 1608 of 1975 under Section 482 Cr.P.C. praying for quashing that order. Mean­while, Israil had filed a revision before the Sessions Judge. That revision was allowed and the order had been quashed. Petition No. 1608 of 1975 was therefore, dismissed on 9-5-1975 as having become infructuous. But it was observed by this court that it was open to the petitioners to move a fresh petition if they felt aggrieved by any further order. Proceedings under Section 107/116 Cr.P.C. ware subsequently started against the petitioners and others on 28-5-1975. The impugned notice for taking proceedings under Section 144 Cr.P.C. was issued on 8-7-1975. This petition was then filed and stay order was passed on 17-7-1975 staying further proceedings in pursuance of the notice dated 8-7-1975. A supple­mentary affidavit was filed by the peti­tioners saying that proceedings under Section 107/116 Cr.P.C. were quashed by the Sessions Judge in the revision by his order dated 11-2-1976.

(2.) LEARNED counsel for the peti­tioners has argued that the Magistrate concerned has wrongly taken recourse to the proceedings under Section 144 Cr.P.C. with a view to preventing the petitioners from holding their cattle market in their plots which they could legally do. It was further argued that in case there was any apprehension of breach of the peace, the proper course was for initiating proceedings under Section 107/116 Cr.P.C. and not under Section 144 Cr.P.C.

(3.) , In the result the petition is allow­ed and the notice dated 8-7-1975 under Section 144 Cr.P.C. and the subsequent proceedings on the basis of this notice are quashed. Application allowed.