Crl. M.C. No. 276 of 2006 (D). Case: A. K. Moni, M.L.A. and Ors. Vs State of Kerala and Ors.. Kerala CEGAT & CESTAT High Court
| Case Number | Crl. M.C. No. 276 of 2006 (D) |
| Counsel | For Petitioner: Joice George, Adv. and For Respondents: P. M. A. Kalam, Public Prosecutor and K. Gopalakrishna Kurup, Advcoate |
| Judges | K. Padmanabhan Nair, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Section 144(5) |
| Citation | 2006 CriLJ 4337 |
| Judgement Date | March 17, 2006 |
| Court | Kerala CEGAT & CESTAT High Court |
Order:
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The B party in M.C. No. 13/2006 on the file of the Sub-Divisional Magistrate, Devikulam, are the petitioners in this Cri. M.C. The challenge in the Cri. M.C. is directed against an order passed by the Sub-Divisional Magistrate, Devikulam, in exercise of the powers conferred on him under S. 144 of the Cr. P.C. On 25-1-2006 the respondents 5 and 6, who are the A party in the Cri. M.C., filed a petition before the Sub-Divisional Magistrate. The Sub-Divisional Magistrate forwarded the copies of that petition to the Dy. S.P., Munnar and the Tahsildar, Devikulam and called for their reports. On receipt of those reports the Sub-Divisional Magistrate was of the opinion that the matter is of such urgency as to require an order under S. 144 of Cr. P.C. and passed an order under S. 144 of Cr. P.C. with intention to prevent the nuisance of apprehended danger. The operative portion of the order reads as follows:
The B party is therefore hereby directed to vacate the said building with immediate effect and not enter the premises of the said building. If the B party resists in vacating the building they will be evicted by the Dy. S.P., Munnar for the A party to exercise their legal rights until the issue is settled by a competent Court.
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Challenging that order, this Cri. M.C. is filed.
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Sri Gopalakrishna Kurup, the learned counsel appearing for respondents 5 and 6 raised a preliminary objection regarding maintainability of this Criminal Miscellaneous Case. It is argued that the remedy available to A party against whom order under S. 144 is passed is to approach the Magistrate and if he takes a decision against aggrieved party, he can move the Government by filing a Cri. Revision Petition under S. 144(6)(b) of the Code and thereafter only the party can approach this Court. Section 144(1) gives power to the Magistrate for issuing orders in urgent cases of nuisance or apprehended danger. Section 144(1) provides that the Magistrate may by written order stating the material facts of the case and served in the manner provided by S. 134, direct any person to abstain from a certain act or to take certain order with resepct to certain property in his possession or under his management if such Magistrate considers that such direction is likely to prevent or tend to prevent obstruction annoyance or injury to any person lawfully employed or danger to his man life, health or safety or a disturbance to public tranquillity or a riot or an affray. (Emphasis supplied)
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Sub-section (2) confers power on the Magistrate to pass interim orders in case of emergency without hearing the opposite party. Sub-section (2) reads as follows:
An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
Sub-section (3) provides that an order under this section may be directed to a particular individual, or persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
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