IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.27638 of 2009
DR.SMT.SHEELA JHA
Versus
STATE OF BIHAR & ORS
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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.