BIDYADHAR SAHOO Vs. SANJAY KUMAR DALEI

JUDGEMENT

(1.) The F.I.R.st party member in a proceeding under section 144 of the Code of Criminal Procedure (hereinafter referred to as the Code has filed this application under section 482 of the Code for quashing the order dated 7-10-1995 passed by the Sub-Divisional Magistrate, Dhenkanal, in Criminal Misc. Case No. 249 of 1995.

(2.) On 27-9-1995 on the basis of a petition-cum-affidavit filed by the present petitioner, the Sub Divisional Magistrate, Dhenkanal, initiated a proceeding under section 144 of the Code and passed a restraint order restraining the second party members and their henchman from going upon the disputed land. The second party members after receiving notice filed their show cause. Though the case had originally been fixed to 11-10-1995, the Sub-Divisional Magistrate, on the basis of a petition filed by the second party members, took up the matter on 7-10-1995 and passed order rescinding the order dated 27-9-1995. The F.I.R.st party member approached this Court on 17-10-1995 challenging the aforesaid order dated 7-10-1995 on the ground that the said order was passed behind the back of the F.I.R.st party without affording any opportunity of hearing.

(3.) There cannot be any doubt that the said order dated 7-10-1995 was illegal, as it was passed without giving an opportunity of hearing to the F.I.R.st party. The proceeding itself had been started on the basis of the petition of the F.I.R.st party and any order prejudicially affecting the F.I.R.st party should have been passed only after giving an opportunity of hearing to the F.I.R.st party. There is thus no difficulty in stating that the order dated 7-10-1995 was illegal and deserves to be quashed. However, it appears that after 7-10-1995 when the Sub-Divisional Magistrate passed an order to drop the proceeding under section 144 of the Code. The said order also appears to have been passed without hearing any party, particularly the F.I.R.st party member. Though the legality of the said order has not been challenged, the correctness of the said order can be examined by the High Court in exercise of silo motu revisional power. However, I find that more than two months have expired from the date of the preliminary order i.e. 27-9-1995 and as such in view of the provision under section 144(4) of the Code, the order under section 144 itself has expired as admittedly no order extending the period has been passed by the State Government under the proviso to section 144(4) of the Code. Since two months period is already over, no useful purpose would be served by delving into the question. Accordingly, this Criminal Misc. Case is disposed of as being infructuous as the proceeding under section 144 of the Code has come to an end by efflux of time. In view of this order. Misc. Case No. 1176 seeking for stay of operation of the impugned order is also disposed of as being infructuous.