1. This reference is made by the learned Sessions Judge Kathua recommending thereby for setting aside of an order recorded by Addl. District Magistrate on 25.2.2002, by virtue of which he has extended the life of his order passed under section 144-Cr.P.C. on 31.12.1999.

2. It appears that the learned Addl. District Magistrate Kathua vide his order No. 211-16/DMK dated 31.12.1999 issued an order in terms of section 144 Cr. P.C. which reads as under:

"Whereas it has come to my notice that large scale encroachment in Taraf Manjli, Taraf Tajwali alongwith Nallah (Gair Mumkin Khad) are being made thereby narrowing down the width of the nallah (Gair Mumkin Khad).

Whereas during the last rainy season the nallah (Gair mumkin khad) was already over flooded and caused serious risk to the life and property to the adjoining persons residing in the vicinity of Kathua town and the Flood Control Department had already laid embankment on either side of Gair mumkin khad. Whereas these embankments are also being encroached upon causing serious risk to the life and property of the people. Now therefore, in order to pre-empt any such apprehension and damage to the life and property to the people it is hereby ordered, in exercise of the powers vested in me u/s 144 Cr. P.C. that henceforth no encroachment be made from old motorable bridge to Shakti Model school in Kathua town or either side of Gair mumkin khad Kathua. This order shall remain in force for a period of 2 months in the first instance."

Thereafter it appears that this order-dated 31.12.99 came to be extended by the A.D.M. Kahtua under his No. DMK/1784/89 dated 9.2.2001 for a period of three month. On 26.5.2001 this order was further extended by three months by virtue of order No. 7860/65/ DMK dated 25.2.2002 issued by learned Addl. District Magistrate Kathua which came to be challenged before the learned Sessions Judge Kathua in a revision.

3. Sec.144 of the Code of Criminal Procedure, empowers a District Magistrate, a Sub-Divisional Magistrate or any other Magistrate, empowered in this behalf by the Government that:

a) immediate prevention of public nuisance; or

b) speedy remedy of apprehended danger is desirable, he may issue written order which must set-forth the material facts of the case and be served as summons. The order must direct any person to abstain from certain act or to take certain order with respect to certain property in his possession or under his management. The direction can, however, be given when such a Magistrate considers that such direction is likely to prevent:

i) Obstruction, annoyance or injury to any person lawfully employed/ or

ii) danger to human life, health and safety; or

iii) disturbance of public tranquillity or riot or an affray.

This order can be passed in absence of the other party in case of emergency. It may directed to a particular individual or the person residing in a particular place or area or to the public generally where frequenting or visiting a particular place or area.

4. This order, under sub-sec.4 of this section, can at the most remain in force for two months from the date of making thereof but in case of danger to human life, health or safety or a likelihood of riot or affray, the State Government may, by notification, extend it to a longer period which in no case should be exceeding six months from the date in which the order made by the Magistrate would have, but for such order, expired.

5. The powers given under this section to the Magistrate are very wide, deserve to be exercised with great care and caution and with discrimination. The sine qua non for exercising this power is the urgency in a case of nuisance or apprehended danger to human life, health or safety or disturbance of public tranquillity or a riot or an affray. An order under this section is an executive order passed in execution of an executive function where no lis as to any rights between the rival parties is adjudicated upon but mainly an order for preserving peace