DAYAMAY BHATTACHARYA Vs. SURYA KANTA

JUDGEMENT

(1.) ORDER :- Dayamay Bhattacharya (hereinafter referred to as the 'petitioner') filed an application under S.144, Cr. P.C. before the learned Executive Magistrate, Barrackpore against Sri Surya Kanta Sur, Sri Sujit Kumar Sur, Sri Radheshyam Ghosh and some unknown others alleging that they were disturbing his peaceful possession in respect of the land described in the Schedule to the said application and praying for an order restraining them from interfering with his such possession. On that application the learned Magistrate passed the following ex parte order on Jan. 19, 1989.

(2.) Alleging non-compliance with the above order, in spite of service thereof the petitioner moved this Court by filing an application under Art.226 of the Constitution of India and obtained certain interim orders. Aggrieved thereby Surya Kanta Sur and Sujit Kumar Sur have filed an application praying for vacating the said interim order.

(3.) Having heard the learned Advocates appearing for the parties and considering the facts and circumstances of the case I am of opinion that the writ application itself is not at all maintainable. Admittedly the writ application has been filed to enforce compliance with an order purportedly passed under S.144, Cr. P.C, but then I find that same has not been made in accordance with law. A plain reading of S.144 of the Code of Criminal Procedure will unmistakably show that before an Executive Magistrate can pass any order thereunder, certain requirements are to be complied with. While considering this aspect of the matter in the case of Babulal Parate v. State of Maharashtra, reported in AIR 1961 SC 884 the Supreme Court observed that to act under Sub-Sec. (1) of S.144, the Magistrate himself had to form an opinion that there was sufficient ground for proceeding under that Section and immediate prevention or speedy remedy was desirable. The Court further pointed out that the Sub-Section also required the Magistrate to make an order in writing and state therein the material facts by reason of which he was making the order thereunder. In reiterating the above proposition, the Supreme Court further pointed out that the latter part of Sub-Sec. (1) of S.144 specifically mentioned that the order of the Magistrate should set out the material facts of the case.