1. This is a reference from Mr. I. H. Ch6wdhury, Sessions Judge, Faridpur for setting aside an order passed under section 144 of the Criminal Procedure Code.
2. The facts leading to the reference are that upon a report submitted by the officer-in-charge of Shibehar Police Station regarding the apprehension of breach of peace, Mr. M. Z. Kidwai, Sub- Divisional Magistrate, Madaripur drew up a proceeding under section 144 of the Criminal Procedure Code on 27-9-1968, restrained the opposite-parties from entering the disputed land and directed them to show cause. Cause was duly shown as directed and on 26-11-1968 the Sub-Divisional Magistrate passed the following order: - "Both parties are present. The order is made absolute."
3. Thereafter the Second Party filed a petition before the Sessions Judge of Faridpur praying for making a reference to this Court for setting aside the proceeding under section 144 of the Criminal Procedure Code and the Sessions Judge has made this reference.
4. Mr. C. F. Karim, learned Advocate appearing in support of the reference contends that the order making the preliminary order under section 144 of the Criminal Procedure Code absolute was bad in law, since it was passed without considering the claim of possession' asserted by the petitioners in the land. His further contention is that since there was a dispute concern--ing the possession of land which gave rise to apprehension of breach of peace, the learned Sub-Divisional Magistrate should have drawn up a proceeding under section 145 of the Criminal Procedure Code.
5. The impugned order which has been quoted above is palpably bad in law inasmuch as it was passed without holding and enquiry into the cause shown against the preliminary order. Reference may be made to the case of Krishnaratharam (1) where it was held that when cause is shown against the continu--ance of the ex parte order passed under continuance of the ex parse order passed under section 144 of the Criminal Procedure Code, it is the obvious duty of the Magistrate to hold, an enquiry and he cannot without holding that enquiry confirm his ex parte order.
6. Again it appears from the written statement filed by the Second Party that they claimed the disputed land to be in their possession and denied the claim of possession of the First Party therein.
7. There was accordingly a dispute concerning possession of land and this could have been decided by drawing up a proceeding under section 141 of the Criminal Procedure Code but instead of doing so the Sub-Divisional Magistrate made the order under section 144 of the Criminal Procedure Code absolute. Reference may be made to the case of Bhairo Gope and others v. Emperor (2) where it was held that section 144 of the Code applies only where the possession of a party is not in dispute but where a dispute exists concerning possession of the question of actual, possession should be decided by taking
(1) AIR 190 Mad. 117(2) 21 Cr. L J 646 evidence in a proceeding under section 145 of the Code: The failure of the sub-Divisional Magistrate to draw up a proceeding under section 145 of the Criminal Procedure Code, in the circumstances amounted to failure to exercise a jurisdiction vested under the law consequently the impugned order passed under section 144 on the Criminal Procedure Code cannot be sustained in law.
8. It seems there is a general tendency on the part of the Magistrates to draw up proceedings under section 144 of the Criminal Procedure Code in cases of apprehension of breach of peace concerning possession of land instead of proceeding under section 145. This is obviously due to disinclination to hold enquiry into the question of possession which is contemplated by section 145.
9. The adoption of the short cut method in drawing up a under section 144 of the Criminal Procedure Code in a case of land dispute cannot effectively meet the situation but only prolongs litigation and gives rise to frequent apprehensions of breach of peace.
10. The order under section 144 has no doubt spent its force by efflux of time but, nevertheless, it is likely to affect the future rights of the parties or it may give rise to misapprehension regarding the rights of the parties in the land in question. In circumstances like this an order under section 144 of the Criminal Procedure Code has to be set aside even though it has ceased to be in force.
11. The reference is accordingly accepted. The impugned order passed by the Sub-Divisional Magistrate is set aside leaving him to draw up a proceeding under section 145 of the Code, for it does not appear that the apprehension of breach of peace concerning possession of the disputed land has ceased to exist.