1968 P Cr (PLP)

This rule was obtained by the 2nd party in an application under section 144 of the Code of Criminal Procedure, presented by the Opposite Party Syed Nurul Alam on the 11th February 1966, in the Court of the Sub‑Divisional Magistrate, South, Dacca. In his said application Syed Nurul Alam claimed ownership and possession in a piece of land mentioned in the schedule attached to application. The learned Sub‑Divisional Magistrate directed the application to be put up on 4‑3‑66 and called for a report from the police. The police having submitted its report on 15‑2‑66 alleging apprehension of breach of peace and praying for issuance of an injunction on the 2nd party, and on a prayer of the applicant, an ex parte order was passed by the Sub‑Divisional Magistrate as follows: "Heard lawyer. Seen police report. I am satisfied that there is apprehension of imminent breach of peace. Draw up proceedings against O. P. under section 144, Cr. P. C. restraining O. P. from entering into the holding in question as mentioned in the schedule. O. P. may show cause, if any, by 4‑3‑66." On 4‑3‑66 the following order was passed: "Petitioner is present. O. P. absent. S. R. of notice not received. Issue Tagid. To 4‑4‑66" On the next date, i.e. 4‑4‑66 the following order was passed:‑ "44‑

66. Petitioner is present. O. P. absent. S. R. of notice not received. The Order under section 144, Cr. P. C. is made absolute against the O. Ps." In the petition presented by the 2nd party in this Court it has been stated that notice of the proceeding was never served on any member of the 2nd party and that the records of the case did not disclose that any attempt was made to effect service of notice, or that notice of the proceeding was at all issued. It has been stated in this petition that the petitioners came to know of the proceeding long after, and thereupon moved the Additional Deputy Commissioner (General), Dacca, who refused to interfere because of the order passed by the Sub‑Divisional Magistrate having spent its force by efflux of time. Indeed, it appears from the order passed by the Additional Deputy Commissioner that he declined to interfere in the matter since a period of sixty days had already expired before the matter came up for disposal before him. It has also been stated in the petition that the petitioners are owners of the disputed land, and that they are in possession of the dame by erecting buts, chapras and other constructions. No counter‑affidavit challenging the statements made in the petition has been filed on behalf of the opposite‑party Syed Nurul Alam, though Mr. F. R. Khan has appeared on his behalf. Mr. Muhammad Habibur Rahman, appearing in support of the rule, has contended that the procedure adopted by the learned Sub‑Divisional Magistrate was extraordinary in that he made the conditional interim order absolute without being satisfied, that the 2nd party has been notified of the ex parte order. He claimed that the order of the 4th April' 1966, was without jurisdiction, and that the entire proceeding was void because of non‑compliance with the requirements as to notice provided in subsection (1) of section 144, Cr. P. C. Mr. Fazlur Rahman Khan contented himself by submitting that no interference was called for in this case in view of the order passed by the learned Sub‑Divisional Magistrate having spent its force by e81ux of time, although upon a close examination of the records the learned Advocate was constrained to concede that there was nothing there in to indicate that notice of the proceeding, or any of the orders passed by the learned Sub‑Divisional Magistrate there in, ever went out of the office of the Court. Subsection (2) of section 144, Cr. P. C. makes it clear that orders under the section are to be passed with prior notice to parties who may be affected by such orders except in circumstances of emergency or in circumstances not admitting of service of notice in due time. In the said circumstances such orders can be passed ex parse. Subsection (1) of section 144, Cr. P. C. again enjoins that every such order, which must be in writing, shall stale the material facts of the case and shall be served in the manner provided by section 144, Cr. P. C., which means that, if practicable, it shall be served on the party concerned just as summonses are served, and if it cannot be so served it shall be notified by proclamation as directed by rules framed by Government, and further that a copy of such order in writing shall be stuck up at such place or places as may be fittest for conveying the information to the party. Subsection (5) again provides for giving an opportunity to the party concerned for appearing before the Magistrate either in person or by a pleader and of showing cause against the order. It further enjoins upon the Magistrate to record his reasons in the event of his rejecting in whole or in part an application of the party concerned showing cause against the order. The rule of natural justice of giving a hearing to a party to be affected by an order at least after it is passed, if circumstances do not permit giving a prior hearing, has been incorporated in the section with utmost care, reflecting an anxiety of the Legislature to ensure that orders under the section are not passed by Magistrates without informing themselves of the version of parties to be affected or at leas making it possible for the Magistrates to correct erroneous orders against parties passed in ignorance of their version of the case. In the present case, as conceded by the learned Advocate for the opposite‑party, notices of the proceeding never issued, and no attempt was made to notify the members of the 2ud party against whom the proceedin5 was sought for. The 2nd party to the proceeding, namely, the petitioners before me need not even rely upon the rule of natural justice in the abstract. Obviously, there has been a flagrant disregard of the legislative mandate as to notice in this case, affecting the validity of the entire proceed ing before the Sub‑Divisional Magistrate. True it is that the order passed under section 144, Cr. P. C. laying a restraint on the 2nd party, has it even been a valid order, would have spent its force by efflux of time. But the 1st party Syed Nurul Alam claimed title and possession in the disputed land in his unverified application before the learned Sub‑Divisional Magistrate and the petitioners, in their sworn petition, have equally laid such a claim to the said land. In view of the contested claim to ownership to the disputed land, I think it will not be fair to part with this case without recording a clear finding as to the validity of the proceeding under challenge in this rule. For the reasons stated above, I am clearly of the opinion that the proceedings before the Sub‑Divisional Magistrate complained of are void and of no legal effect. The rule is disposed of accordingly. Ride disposed of.