Dwarka Nath vs Additional District Magistrate, Kathua

1.This reference is made by the learned Sessions Judge Kathua recommending thereby for setting aside of an order recorded by Addl. District

Magistrate on 25.2.2002, by virtue of which he has extended the life of his order passed under section 144Cr.P.C. on 31.12.1999.

It appears that the learned Addl. District Magistrate Kathua vide his order No. 21116/DMK dated 31.12.1999 issued an order in terms of

section 144 Cr. P.C. which reads as under:

Whereas it has come to my notice that large scale encroachment in Taraf Manjli, Taraf Tajwali alongwith Nallah (Gair Mumkin Khad) are being

made thereby narrowing down the width of the nallah (Gair Mumkin Khad).

Whereas during the last rainy season the nallah (Gair mumkin khad) was already over flooded and caused serious risk to the life and property to

the adjoining persons residing in the vicinity of Kathua town and the Flood Control Department had already laid embankment on either side of Gair

mumkin khad. Whereas these embankments are also being encroached upon causing serious risk to the life and property of the people. Now

therefore, in order to preempt any such apprehension and damage to the life and property to the people it is hereby ordered, in exercise of the

powers vested in me u/s 144 Cr. P.C. that henceforth no encroachment be made from old motorable bridge to Shakti Model school in Kathua

town or either side for Gair mumkin khad Kathua. This order shall remain in force for a period of 2 months in the first instance.

Thereafter it appears that this order dated 31.12.99 came to be extended by the A.D.M. Kahtua under his No. DMK/1784/89 dated 9.2.2001

for a period of three month. On 26.5.2001 this order was further extended by three months by virtue of order No. 7860/65/DMK dated

25.2.2002 issued by learned Addl. District Magistrate Kathua which came to be challenged before the learned Sessions Judge Kathua in a

revision.

Sec.144 of the Code of Criminal Procedure, empowers a District Magistrate, a SubDivisional Magistrate or any other Magistrate, empowered

in this behalf by the Government that:

a) immediate prevention of public nuisance; or

b) speedy remedy of apprehended danger is desirable, he may issue written order which must setforth the material facts of the case and be served

as summons. The order must direct any person to abstain from certain act or to take certain order with respect to certain property in his

possession or under his management. The direction can, however, be given when such a Magistrate considers that such direction is likely to

prevent :

i) Obstruction, annoyance or injury to any person lawfully employed/or

ii) danger to human life, health and safety; or

iii) disturbance of public tranquillity or riot or an affray.

This order can be passed in absence of the other party in case of emergency. It may directed to a particular individual or the person residing in a

particular place or area or to the public generally where frequenting or visiting a particular place or area.

This order, under subsec.4 of this section, can at the most remain in force for two months from the date of making thereof but in case of danger

to human life, health or safety or a likelihood of riot or affray, the State Government may, by notification, extend it to a longer period which in no

case should be exceeding six months from the date in which the order made by the Magistrate would have, but for such order, expired.

The powers given under this section to the Magistrate are very wide, de serve to be exercised with great care and caution and with

discrimination. The sine qua non for exercising this power is the urgency in a case of nuisance or apprehended danger to human life, health or safety

or disturbance of public tranquillity or a riot or an affray. An order under this section is an executive order passed in execution of an executive

function where no Ms as to any rights between the rival parties is adjudicated upon but mainly an order for preserving peace.

This section intends to meet an emergency; this postulates a situation temporary in character, therefore the duration of the order is not intended

to be either permanent or semi permanent in a character. It is why under subsec. 4 its life shall not remain in force beyond two months when made

by the Magistrate. The scheme of the section does not contemplate repetitive orders. If repititive orders are made, it would clearly amount to

abuse of powers of the Magistrate passing the order. Reference in this behalf is made to a case titled Acharya Jagdishwaranand Avadhuta v.

Commissioner of Police Calcutta, reported in 1983 (4) SCC 522.

Examining the case in hand in the background of this law it appears that the order under section 144Cr. P.C. was passed on 31.12.1999, which

came to be extended from time to time by the Addl. District Magistrate, for which he had no jurisdiction. Therefore, the order of extention

recorded by him on 25.2.2002, which was impugned before the learned Sessions Judge, Kathua, is illegal and sufferes with impropriety and

appears to have been passed in the abuse of jurisdiction of the Addl. District Magistrate therefore, same is accordingly quashed. The reference is

accepted.

Let the record of the case, alongwith this order, be returned to the Court below. Copy of this order be also sent to Addl. District Magistrate,

Kathua, for information and necessary action.