MOURHARI JANA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner made an application before the learned Magistrate under section 144, Cr. P.C. in the court of the Sub-divisional Executive Magistrate, Contai. The learned Magistrate drew up proceeding under section 144, Cr. P.C. and restrained the O.P. No.2 and his men from entering into the disputed plot. The O.P. No.2, later made a subsequent application on 5.10.1982. The learned Magistrate, observing that the dispute as to the actual possession relating to land was involved, converted the second 144 proceeding into a proceeding under 145, Cr. P.C. Being aggrieved, the petitioner has filed the revision case before this court.

(2.) Mr. Mrinal Kanti Roy, the learned advocate appearing for the petitioner has submitted two short points. His first point is that after passing an order in an earlier 144 proceeding the learned Magistrate should not have entertained the second application under the same provision of law, ignoring his own order in the earlier proceeding. His second point has been that the learned Magistrate should not have converted the second under 144 proceeding to Section 145 proceeding.

(3.) Mrs. Parull Banerjee, the learned advocate appearing for the State has contended that as the learned Magistrate passed the impugned order on 22.10.1982, 60 days had nearly expired after the order in the first 144 proceeding. Now it is not the question whether 60 days had nearly expired the statutory period, as prescribed in sub-section (4) of Section 144 of the Cr. P.C. is two months. No doubt the first order was existing when the second petition was converted into a proceeding under section 145 of the Cr. P.C. There should not be two parallel 144 proceedings ever the same matter. In so far the learned Magistrate committed an irregularity. However, this point is of not much materiality because by now the force of the first order has been spent. In a revisional matter, the court is not only to look into the question of legality or otherwise of the order, but also to consider whether that said illegality has resulted in failure of justice. Having found that the force of the order has by now been spent it is not seen that there has been any failure of justice or the petitioner has been prejudiced in any way.