AJIT KUMAR MANDAI Vs. TUSHARKANTA BHOMIK AND ORS.

JUDGEMENT

(1.) THE Petitioner assails the order of the learned Executive Magistrate, Kendrapara passed under Section 144, Code of Criminal Procedure restraining him from entering upon the case land until further orders.

(2.) THE present case has become infructuous since the restraint order passed under Section 144(2), Code of Criminal Procedure by the learned Executive Magistrate on 29.10.1998 has lapsed by efflux of time in terms of Sub -section (4) of Section 144, Code of Criminal Procedure. But, however, keeping in view the facts and circumstances of the case and the submissions made by the learned Counsel for the Petitioner, it is necessary to discuss the short facts and circumstances of the case and as to how the proceedings are initiated under Section 144, Code of Criminal Procedure and the process is abused by the interested parties and undue advantage has been taken of, without recourse to proper and appropriate provision and forMs. Sri Pradhan, learned Counsel for the Petitioner submitted that on a consideration of the background of the case, and the manner is which successive applications under Section 144, Code of Criminal Procedure is made suppressing material facts and orders are obtained to the detriment of the present Petitioner in spite of a clear right, title, interest and possession over the disputed land. It is submitted that in the year 1986, opp. party No. 1 having decided to ell a portion of the disputed property to the extent of Ac.5.305 decs. and the Petitioner and opp. party No. 1 having executed an agreement for sale of the property, but however, opp. party No. 1 having subsequently changed his mind being influenced by the interested person and having not registered the property in favour of the Petitioners, the Petitioner had filed a title suit in the Court of the learned Subordinate Judge, Kendrapara.

(3.) LAW is well settled that power under Section 144, Code of Criminal Procedure vested with the Magistrates are intended to be exercised sparingly in case of urgency of situation for prevention of imminent breach of public peace and tranquility. Such is an executive order passed in due performance of an executive function where there is No. question of adjudication of right or title between the parties. The foundation of an order under Section 144, Code of Criminal Procedure is the satisfaction of an Executive Magistrate with regard to urgency of the prevailing situations and that power is only to be exercised for preventing imminent breach of public peace and disturbance of tranquility. However, the scope of an order contemplated under Section 145, Code of Criminal Procedure is specific with regard to and rising out of a dispute concerning land and water, leading to and apprehended to be resulting in breach of peace and tranquility of the public. It is only to determine only the possession of the party and consequential right to remain in possession till the right, title or interest to possess the property is determined by a competent Civil Court, The resort to this forum in the Criminal Court cannot be for the purpose of defeating the determination made by the Civil Court. In any event the Executive Magistrate before exercising powers under Section 144, Cr.P.C. has to record his satisfaction with regard to existence of the conditions for issuance of any such order of restraint and not as of course or for mere asking for it. Thus when there was a bona fide claim of right by both the sides and claim of possession of disputed properties, it was incumbent upon the learned Magistrate to enquire' and be satisfied about the existence of necessary ingredients of the provision and the existence of emergent situation for such an order of restraint. The Magistrate was also required to consider the fact situations of the case and has to be prima facie satisfied himself as to whether or not any order of restraint or otherwise is needed to be passed to prevent an imminent breach of public peace and tranquility and as to which of the Sections 144 or 145, Code of Criminal Procedure has to be resorted to. In any event the Executive Magistrate should keep in mind the statutory principle of law that the process of law cannot be allowed to be utilised for oblique purpose by any interested party.