Md. Akram Hussain vs The State of Bihar and Others

I.P. Singh, J.—Heard the parties.

This application has been filed for quashing the order dated 16.4.2002 passed by the learned 6th Addl. Sessions Judge, Aurangabad in Cr. Rev. No. 2/2001/57/2001 by which the learned Judge has set aside the order dated 24.6.2000 passed by the learned S.D.M. Daudnagar, Aurangabad in Case No. 84/2000.

Learned Counsel appearing on behalf of the Petitioner has submitted that the learned court below without applying his judicial mind set aside the order passed by the S.D.M. It has been further submitted that the learned Magistrate has not declared possession of any party rather it was held that the Petitioner was in possession and prohibited the opposite party No. 2 for going to the land. As such it was not without jurisdiction.

Perused the impugned order. It is clear that the power to issue order prohibiting someone from going on the land in urgent case if there are apprehension of breach of peace lie with the Magistrate who in his territorial jurisdiction is empowered for that. However, such order of the Magistrate is short lived and can not continue for a long period. According to the provision of Section 144 of the Code of Criminal Procedure such order loses its force after 60 days. But in the present order there are two parts of the order firstly to ascertain that the Petitioner was in possession over the land, secondly opposite party was prevented for going over the land and the order passed by the learned Magistrate was beyond its jurisdiction since u/s 144 of the Code of Criminal Procedure by which the possession of the Petitioner has been declared was uncalled for. The learned court below has rightly set aside the order of the learned Magistrate. The order dated 16.4.2002 does not suffer from any defects and as such I see no reason to interfere with the impugned order.

Accordingly, this application is dismissed.