MAHADEV MAITY Vs. MANICK LAL MONDAL

JUDGEMENT

(1.) THE present revisional application is directed against the order dated 10.11.1997 passed by the learned Executive Magistrate in Misc. Case No. 774/1997. It appears that the said Misc. Case was registered on the basis of an application filed by the opposite party to an earlier Misc. Case being Misc. Case No. 972/96 under sections 144/107, Cr.P.C. during the pendency of the earlier Misc. Case No. 972/96. In Misc. Case No. 972/96 which arose out of an application by the present petitioner under sections 144/107, Cr.P.C. the learned Magistrate called for a report from the O.C. Shyampur Police Station and B.L. and R.L.C., Shyampur and at the same time directed the O.C. to see that no breach of peace takes place in the mean time and also to see that opposite parties are not allowed to create any disturbance to the petitioner or damage the standing crops forcibly and also to see that actual cultivator of the disputed land gets all the protection in harvesting the standing crops. The reports were scheduled to be submitted by 1.1.1997 and the petitioners have not annexured copies of the subsequent orders that were passed in Misc. Case No. 972/96. Of course, in his revisional application the petitioners alleged that the said Misc. Case is still pending final hearing. In the subsequent Misc. Case No. 774/97 which arises out of an application filed by the opposite party of the earlier Misc. case, the self same Magistrate called for a report from the O.C., Shyampur Police Station and B.L. and L.R.C., Shyampur and directed the O.C., Shyampur Police Station to see that no breach of peace takes place and no disturbances are created over the issue. The learned Magistrate also directed the O.C. to see that the actual cultivator of the land gets protection. He has fixed 16.12.1997 as the date for submission of the reports and for appearance of the opposite party. It is thus clear that two parallel applications - one at the instance of the petitioners and the other at the instance of the opposite parties - are being proceeded with by the self same Magistrate over the self same subject matter. It also appears that the injunction that was granted in the earlier case by order dated 22.11.1996 has already ceased to operate when the subsequent order dated 10.11.1997 was passed by the learned Magistrate in the subsequent Misc. Case. Now, in both the cases it is apparent that the learned Magistrate has not chosen to formally draw any proceeding as contemplated under sub-section (1) of Section 144, Cr.P.C. It is settled law that no ex parte injunction under sub-section (2) of section 144 can be granted by the Executive Magistrate without any formal proceeding being drawn up within the meaning of sub-section (1) of Section 144, Cr.P.C. In the circumstances, the injunctions granted by orders dated 22.11.1996 and 10.11.1997 are bad in law and are accordingly hereby quashed. The learned Magistrate is to proceed with the Misc. Case No. 972/96 in accordance with law and drop the subsequent proceeding i.e. Misc. Case No. 774/97 in order to avoid multiplicity of proceedings. The application is accordingly disposed of.

(2.) THE learned Magistrate shall consider the reports submitted by the police and the B.L. and L.R.C. which he has called for and decide upon hearing both sides whether any proceeding is required to be drawn under section 144, Cr.P.C. The learned Magistrate shall also consider whether any injunction in any form is required to be passed under sub-section (2) of Section 144, Cr.P.C. The petitioners are at liberty to approach the learned Magistrate for injunction if it is otherwise warranted by law in the facts and circumstances of the case.

(3.) IF urgent certified copy of the order is applied for, the same be furnished forthwith.