An order passed under Section 144 Cr.P.C. cannot remain in force for more than two months from the date of making thereof, and successive orders to enlarge the duration of the order beyond the period of two months are illegal and amount to an evasion of the expressed provision of law.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 144 - PROHIBITORY ORDERS - INTERPRETATION AND APPLICATION - COURT'S JURISDICTION TO QUASH ILLEGAL ORDERS - MAINTAINABILITY OF PETITION UNDER SECTION 482 CR.P.C. - JUDICIAL NATURE OF PROCEEDINGS UNDER SECTION 144 CR.P.C. - MANDATORY TIME LIMIT FOR ORDERS - SUCCESSIVE ORDERS TO EXTEND DURATION - LEGALITY - ABUSE OF POWER.
Fact of the Case:

A multi-storied building under construction collapsed during the construction of the 7th-floor roof slab, resulting in the death of four laborers and injuries to ten others. The Additional District Magistrate (ADM) issued a prohibitory order under Section 144 Cr.P.C., preventing entry into the premises, which was extended from time to time. The petitioners, the construction firm and its partners, challenged the prohibitory orders through a petition under Section 482 Cr.P.C., arguing that the orders were issued arbitrarily, without proper notice or opportunity for hearing, and in violation of the two-month time limit prescribed under Section 144(4) Cr.P.C.
Finding of the Court:

The court held that the proceedings under Section 144 Cr.P.C. are judicial proceedings and that the Magistrate acting under this section is a criminal court. The court further held that the prohibitory orders issued by the ADM were illegal as they violated the mandatory time limit of two months prescribed under Section 144(4) Cr.P.C. and that successive orders to extend the duration of the orders were not permissible.
Issues: 1. Whether the prohibitory orders issued by the ADM were arbitrary and without application of mind. 2. Whether the petitioners were served with the orders and provided a proper opportunity of hearing. 3. Whether the Magistrate held an enquiry in a judicial manner when the petitioners appeared before him suo moto and placed material on the record to rescind the order. 4. Whether Section 144 Cr.P.C. authorizes a Magistrate to pass successive orders to enlarge the duration of the orders beyond the period of two months.
Ratio Decidendi: 1. The court held that the ADM acted arbitrarily and without application of mind in issuing the prohibitory orders without considering the objections raised by the petitioners and without holding a proper enquiry. 2. The court held that the petitioners were not served with the orders and were not provided a proper opportunity of hearing, as required under Section 144(1) Cr.P.C. 3. The court held that the Magistrate did not hold an enquiry in a judicial manner when the petitioners appeared before him suo moto and placed material on the record to rescind the order. 4. The court held that Section 144(4) Cr.P.C. clearly provides that no order under this section shall remain in force for more than two months from the date of making thereof, and that successive orders to enlarge the duration of the orders beyond the period of two months are illegal and amount to an evasion of the expressed provision of law.
Final Decision: The court allowed the petition and quashed the impugned prohibitory orders passed by the ADM under Section 144 Cr.P.C. as being without jurisdiction.

JUDGMENT

1. - M/s. Gems Builders, Jaipur and its partners as well as M/s. Pushpendra Investment Co. (Pvt. Ltd.) have challenged the various prohibitory orders issued by non-petitioner No. 2, the Addl. District Magistrate (First), Jaipur, by moving this petition u/S. 482 Cr.P.C.

2. During the course of arguments some important questions of law have been raised by the learned counsel for the petitioners as well as the learned Public Prosecutor. In order to appreciate the real controversy, it is necessary to detail out the necessary facts in brief, which are as follows

(i) A multi storied building popularly known as 'Raisar Plaza' is being constructed by the petitioner Firm M/s. Gems Builders, Jaipur at Baba Harischandra Marg, Jaipur. When RCC roofing slab was being laid on the 7th storey of the building it collapsed when it was in process on 11-6-90. In the said accident/incident 4 labourers died and 10 were injured. It is alleged that the structural design and the structural plans of the building were prepared by M/s. Rahul Patel and Company, New Delhi, while architectural design was prepared by M/s. Varunsen & Associates. The construction was being looked after by the Engineers of the Contractor as well as of the petitioner Firm.

(ii) On the same day i.e. 11-6-90 the Addl. Distt. Magistrate (non-petitioner No. 2) issued a prohibitory order by which, the entry of the partners and other persons including that of the shopkeepers, who were having shopping centres in the said premises, was prevented. This prohibitory order was extended from time to time by subsequent orders which were also issued by non-petitioner No. 2 u/S. 144 Cr.P.C.
On 31-10-90, the non-petitioner No. 2 again issued a prohibitory order u/S. 141 Cr.P.C. to be in force upto 15th Nov., 1990.

(iii) The petitioners filed the present petition on 7-11-90 for quashing the order dated 31-10-90 which is Annx. 2 on the file. On 8-11-90, the matter was listed before this Court and a show cause notice was issued to the non-petitioners. The learned Public Prosecutor appeared in the Court and a copy of the petition was supplied to him. A notice of the petition was also issued to the Addl. District Magistrate (non-petitioner No 2) and the case was ordered to be posted in the Court on 13-11-90. The connected record was also ordered to be summoned from the office of Addl. District Magistrate, Jaipur. The notice of the application was served on the Addl. District Magistrate, Jaipur on 9-11-90. When the matter was listed in the Court on 13-11-90 then the P.P. sought two days' time to argue the matter and the case was ordered to be listed on 15-11-90.

3. On 15-11-90, during the pendency of the present petition, a fresh prohibitory order u/S. 144 Cr.P.C. was again issued by the Addl. District Magistrate, non-petitioner No. 2, by which, the prohibitory order was extended upto 30th Nov., 1990.

4. When the matter was listed before this Court on 15-11-90, the learned counsel for the petitioners brought to the notice of this Court about issuance of the aforesaid order dated 15-11-90, a copy of which has been placed on the record on 22-11-10. The matter was argued on 15-11-90 and 16-11-90.

5. The connected record of the case was not made available to the Court by the Addl. District Magistrate, Jaipur in spite of the specific order of this Court. During the course of the arguments, the learned Public Prosecutor made a categorical statement that Addl. District Magistrate, Jaipur who was impleaded as non-petitioner No. 2, neither contacted with him nor made the relevant record available to him. He further pointed out that one legal Assistant had met him after the receipt of the notice by non-petitioner No. 2 and he was given instructions to send the relevant record but thereafter, that Legal Assistant also did not contact nor he brought the record. This is really a sorry state of affair that the concerned Addl. District Magistrate has acted in such irresponsible manner in not making the connected re

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Judicial Analysis

1990 Supreme(Raj) 766

RAJASTHAN HIGH COURT AT JAIPUR BENCHN.L.Tibrewal, J.M/s Gems Builders & anr. - AppellantVersusState of Raj. & anr. - RespondentS.B. Cri. Misc. Petition No. 1228 of 1990. (Against order dated 31.10.90 pissed by Addl. Distt. Magistrate (First), Jaipur u/s 144 Cr.P.C.).Decided On : 30-11-1990

An order passed under Section 144 Cr.P.C. cannot remain in force for more than two months from the date of making thereof, and successive orders to enlarge the duration of the order beyond the period of two months are illegal and amount to an evasion of the expressed provision of law.

Cases Referred (1)

Judicial Analysis

RAJASTHAN HIGH COURT AT JAIPUR BENCH
N.L.Tibrewal, J.
M/s Gems Builders & anr. - Appellant
Versus
State of Raj. & anr. - Respondent
S.B. Cri. Misc. Petition No. 1228 of 1990. (Against order dated 31.10.90 pissed by Addl. Distt. Magistrate (First), Jaipur u/s 144 Cr.P.C.).
Decided On : 30-11-1990