P L D 1964 Dacca 520 (PLP)

In this case a Rule was issued on the Deputy Commissioner of Khulna to show cause why an order made by Mr. S. A. Chowdbury, Magistrate, First Class, Satkhira, dated 29‑11‑62 should not be set aside. The impugned order is in the following terms "The 1st party present. 2nd party Sultan Ahmed is also present. 2nd party Amanat and Saritullah appear today. Cause shown by them also. Heard both parties and seen some papers produced by the 2nd party. It appears that the Settlement was taken by Registered Kabuliyat in 1362 with the permission. The alleged settlement by 2nd party appears to be collusive. The order under section 144, Criminal Procedure Code made absolute."

2. The learned Sessions Judge before whom a revisional application was filed for making a reference to this Court refused to do so inasmuch as the order was no longer in force as two months had already expired from the date of the order. It is true, generally speaking, there should be no interference with an order under section 144 of the Code of Criminal Procedure after it ceases to be in force, but there may be a circumstance in which the order may be revised by the High Court. There is no absolute bar against such an action if, circumstance so justifies. If it is found that although the impugned order has spent its force, the parties will suffer from consequences or effect of that illegal order, justice undoubtedly requires that it should be set aside. I have already expressed my views to the same effect in the case of Nurul Haque and others v. Sarada Debi alias Kiranbala in Criminal Revision No. 121 of 1963 in which the same point was raised.

3. In the present case on a consideration of the materials before him, the learned Sessions Judge reached the following conclusion "A Magistrate acting under this section has no business to adjudicate upon rights and has no jurisdiction to decide upon any question of title ox possession ; the only question before him is, whether a breach of the peace is imminent and to make an order with the object of preventing a breach of the peace. The order complained of indicates that the learned Magistrate was guided by some other consideration and did not take into consideration the real aspect of the case. So the order is bad in law. Though the order of the learned Magistrate appears to be illegal no substantial benefit will accrue to the aggrieved party in making any reference to the, Hon'ble Court. The preliminary order was passed on 6‑10‑62 and such order is enforceable only for two months. The said period has already elapsed and the aggrieved party has still enough remedy to vindicate their rights in civil Court."

4. The learned Sessions Judge has observed to the effect that the impugned order tends to decide upon a question of title and that it is bad in law and has been made without jurisdiction. He has also expressed the view that the party aggrieved by the same may agitate the matter before a civil Court. That indicates that, in this case, the aggrieved party has a possibility of suffering in future because of the observations made by the learned Magistrate which the learned Judge seems to think was illegal and without jurisdiction. In such a situation, it has been rightly contended by Mr. Mahbubur Rahman who made laborious research on the subject and cited before me several decisions in support of his contention that there is no absolute bar in setting aside an order under section 144 after it has spent its force. He, however, concedes that usually there should be no order setting aside the same after expiry of the order. There may, however, be exceptional circumstances in which such an interference is called for and in support of his contention he has rightly placed his reliance upon the decisions of Taturam Sahu v. The State of Orissa (A I R 1953 Orissa 96 ) ; Dewan Singh and others v. Deo Narain Singh and others (A I R 1951 Pat. 253) ; Joint Agents, I. G. N. & Roy. Co. and R. S. N. Co. Ltd., Digha v. Chandra Ketu Narain Singh (A I R 1933 Pat. 185), as well as Chandra Kanta Kanjilal v. King‑Emperor (23 C W N 981).

5. In the facts and circumstances of the case, as indicated above, I am of opinion that in this case a circumstance exists in which an order setting aside the impugned order should be made although it is no longer in force inasmuch as refusal to do, so may affect the future rights of the petitioners. In the result, the rule is made absolute and the impugned order is set aside. s. Q./K. B. A. Rule made absolute.