JITENDRA NATH MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application is directed against an order dated 22 10 81 passed under Sec. 144(2) of the Code of Criminal Procedure 1973 by the learned Executive Magistrate, Alipore in respect of plot no. 125 measuring 2.37 acres in Mouza Gourdaha, P. S. Canning, Dist -24 parganas in Case No. M349 of 1981. The learned Advocate for the petitioner has submitted that although the force of the order under Sec. 144(2) of the Code expired sixty days after the promulgation thereof, there is a finding of the learned Magistrate in the said order to the effect that the first party i.e., the opposite party no 2 in this case was in absolute possession of the case land which finding is without jurisdiction as in a proceeding under Sec. 144 of the Code and that the learned Magistrate is to consider as to whether there was sufficient ground for proceeding against the opposite party to made an order for preventing annoyance or injury to persons lawfully employed or danger to human life, health or safety or to prevent disturbance of public peace or tranquility and if the situation is emergent the learned Magistrate is empowered to pass an order exparte under Sec. 144(2) of the Code. There is substance in this contention. In the Circumstances after hearing the learned Advocates for the parties and considering the legal position. I order that the Rule be discharged without prejudice to the rights and contentions of the parties and without any finding of the learned Magistrate regarding possession of the case land being binding on the parties. The sale proceeds of the paddy harvested from the disputed land by the J L.R.O. will be payable to the party, who will be able to establish his right to the crops of the disputed land in a proper proceeding.