Judgment:
ORDER
P.K. Misra, J.
1 The first party members are the petitioners. They have challenged the notice dated 22-1-1996 issued by the Executive Magistrate, Cuttack, relating to initiation of a proceeding under Section 144 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') numbered as Criminal Misc. Case No. 71 of 1996.
2. Prior to initiation of the present proceeding under Section 144, the very same Executive Magistrate had initiated Criminal Misc. Case No. 1131 of 1995 under Section 144 of the Code in respect of the very same property wherein an order was passed on 9-1-1996 finally restraining both the sides. Subsequently, in the very same case, order was passed on 15-1-1996 rescinding a part of the final order dated 9-1-1996 which was challenged in Criminal Revision No. 17 of 1996, which has been disposed of by me today. The order in Criminal Misc. Case No. 1131 of 1995 was to expire on 23-1-1996, as observed by the Executive Magistrate himself in order dated 9-1-1996 in the said case. While the matter stood thus, the Executive Magistrate issued another notice under Section 144(2) of the Code in respect of the very same property calling upon the parties to show cause. The aforesaid notice is under challenge.
3. Mr. Palit, the learned Senior Counsel appearing on behalf of the petitioners, submits that under Section 144 of the Code, the Magistrate is not empowered to extend the duration of his own order by passing successive 144 orders.
4. Sub-sections (4) and (6) of Section 144 of the Code which are relevant for the purpose are extracted hereunder:-
144. Power to issue order in urgent cases of nuisance or pprehended danger.-'xx xx xx
(4) No order under this section shall remain in force for more than two months from the making thereof :
Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
xx xx xx
(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to Sub-section (4).
A combined reading of the aforesaid provisions makes it clear that the State Government is empowered to increase the duration of an order passed by a Magistrate and unless such a course is adoted by the State Government, no order under Section 144 can remain in force for a period more than two months. It is trite saying that what cannot be done directly cannot be permitted to be done indirectly. If the Executive Magistrate or any other authority fell the necessity of continuance of an order under Section 144, the appropriatte course would have been to approach the State Government under Section 144(4), Proviso, In this case, It is apparent that the Executive Magistrate without proper application of mind to the mandatory provisions of law has tried to porpotuate his own order by passing successive orders in respect of the self-same dispute. Even wihout seeking for extension of the duration of the order under the proviso, the Executive Magistrate could have taken resort to other provisions of the Code, such as Section 107, or Section 145,if is was felt absolutely nesessary in order to maintain law and order, but he had no jurisdiction to perpetuate or extent the duralion of his own order in the indirect manner adopted by him. This conclusion of mino is supported by the Division Bench decision reported in AIR 1925 Calcutta, 625 : 26 Cri LJ 874 (Ashutosh Roy v. Haris Chandra Chattanadhya). There is another reason is to why the notice of the Executive Magistrate is vitiated. As evident from the narration of events, the term of the earlier order was till 23-1 -1996 and as such, the Executive Magistrate, while the earlier order was still in force, could not have come to a conclusion that action under Section 144(1) of the Code was indeed necessary.
5. Mr. Rahim, learned counsel appearing for the opposite parties, submitted that the effect of the present impugned notice/order is to expire after two months i.e. on 22-3-1996 and as such the High Court in exercise of its revisional jurisdiction should not interfere in the matter. Though, ordinarily, a revisional Court should not interfere in such matters specially when the duration of the order has expired or is about to expire, in the facts of this case, the submission of the learned counsel for the opposite parties cannot be accepted. Law is well settled that even after the expiry of the order due to efflux of time, in a fit case, the revisional Court can interfere with the orders passed by the Executive Magistrate under tion 144 of the Code. (See Taturam Sahu v. The State of Orissa, AIR 1953 Orissa 96:1953 Cri LJ 731; Niranjan Sahu v. Keonjhar Municipality represented by its Chairman, (1971) 37 C.L.T., 857 and Kshirod Ch. Sahu v. Executive Magistrate, Sadar, Cuttack Criminal Revision No. 17 of 1996, disposed of on 22-3-1996). In the present case, the Executive Magistrate clearly committed an illegality in trying to perpetuate his own order by initiating fresh proceeding. Accordingly, the notice dated 22-1-1996 under Annexure-5 is found to be illegal and is hereby quashed.
6. It is also contended by the learned counsel for the opposite parties that the 1st. party-petitioners instead of showing cause and approaching the Ex-ecutive Magistrate under Section 144(5) of the Code for rescinding the order/notice, have straightway approached the High Court and as such the High Court should not exercise its revisional power. Though not cited at the Bar, I have come across the decision of the Orissa High Court reported in 1988 (2) O. L.R. 578 (Kailash Chandra Kanungo v. State of Orissa) wherein G, B. Patnaik, J. (as his Lordship then was) refused to interfere with an order, as the order itself was going to expire within a few days of the disposal of the Criminal Revision and as the petitioners had straightway approached the High Court instead of approaching the Executive Magistrate. The facts in the said reported case were completely different. In the present case, as evident from the events narrated above as well as in connected Criminal Revision No. 17 of 1996, the Executive Magistrate has tried to perpetuate his order under Section 144 of the Code which has been deprecated in several decisions. Accordingly, in order to avoid further complications in future, I have decided to interfere with the order of the Magistrate. It is made clear that if the circumstances so require, the Executive Magistrate can proceed either under Section 107 or under Section 145 of the Code, depending upon the exigencies of the case. This Criminal Revision is accordingly allowed.