High Court Patna High Court - Orders

/Dr.Smt.Sheela Jha vs State Of Bihar &Amp; Ors on 11 August, 2010

Patna High Court – Orders
/Dr.Smt.Sheela Jha vs State Of Bihar &Amp; Ors on 11 August, 2010
                        IN THE HIGH COURT OF JUDICATURE AT PATNA
                               Cr.Misc. No.27638 of 2009
                                   DR.SMT.SHEELA JHA
                                         Versus
                                  STATE OF BIHAR & ORS
                                      -----------

4. 11.8.2010. Heard Sri Gopal Jha, learned counsel

appearing for the petitioner and also heard Sri

Maya Nand Jha, learned counsel appearing for

the State of Bihar and also for the Sub

Divisional Magistrate, Benipatti who has been

impleaded as Opposite Party no.2.

The petitioner seeks the quashing of

notice dated 25.6.2009 issued by the Opposite

Party no.2, S.D.M., Benipatti against the

present petitioner calling upon her to show

cause as to why a complaint under Section 188

IPC be not filed as she had, in spite of the

order under Section 144 Cr.P.C., and also in

spite of being prohibited by the police not to

do so, constructed her house on the disputed

property on 28.5.2009. The undisputed facts are

that the order under Section 144 Cr.P.C. was

initiated on 25.2.2009 and it finally expired on

account of the lapse of 60 days on 26.4.2009.

Thus, it could be not acceptable that after

26.4.2009 there was any order existing which

could have prohibited either of the parties to
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go to the disputed property on account of the

promulgation of prohibitory nature of the order

in respect of that particular property. Even on

assuming that the petitioner had accompliced the

act complained of this could be plainly clearly

act was complained of by the S.D.M., Benipatti

has committed on the 28th of May, 2009, i.e., two

days after the order had a statutory death when

there was no order in existence. There was no

violation of any such order and as such the

issuance of notice to the petitioner appears

completely not only in excess of the

jurisdiction of the S.D.M., Benipatti but

appears an utter abuse of his powers created by

the statement of the parliament. Before issuing

the notice it was desirable that the S.D.M.,

Benipatti should have examined the pros and cons

of the matter especially the legal provision and

the period for which a prohibitory order under

Section 144 Cr.P.C. could be inexistence and

then should have issued the notice. His advice

not to do in future because issuing a notice of

the nature which has been quashed in reality

creates some impression in enjoying the

fundamental rights of freedom as also the
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statutory right of enjoying the freedom and

besides being treated in a just man.

The petition is allowed.

( Dharnidhar Jha, J. )
B.Kr.