A Magistrate cannot extend the duration of his own order under Section 144 of the CrPC by passing successive orders without the State Government's approval.

P. K. MISRA, J.

( 1 ) THE first party members are the petitioners. They have challenged the notice dated 22-1-1996 issued by the Executive Magistrate, Cuttack, relating to initiation of a proceeding under Section 144 of the Code of Criminal Procedure (hereinafter referred to as the "code") numbered as Criminal Misc. Case No. 71 of 1996.

( 2 ) PRIOR to initiation of the present proceeding under Section 144, the very same Executive Magistrate had initiated Criminal Misc. Case No. 1131 of 1995 under Section 144 of the Code in respect of the very same property wherein an order was passed on 9-1-1996 finally restraining both the sides. Subsequently, in the very same case, order was passed on 15-1-1996 rescinding a part of the final order dated 9-l-1996 which was challenged in Criminal Revision No. 17 of 1996, which has been disposed of by me today. The order in Criminal Misc. Case No. 1131 of 1995 was to expire on 23-1-1996, as observed by the Executive Magistrate himself in order dated 9-1-1996 in the said case. While the matter stood thus, the Executive Magistrate issued another notice under Section 144 (2) of the Code in respect of the very same property calling upon the parties to show cause. The aforesaid notice is under challenge.

( 3 ) MR. Palit, the learned Senior Counsel appearing on behalf of the petitioners, submits that under Section 144 of the Code, the Magistrate is not empowered to extend the duration of his own order by passing successive 144 orders.

( 4 ) SUB-SECTIONS (4) and (6) of Section 144 of the Code which are relevant for the purpose are extracted hereunder :"144. Power to issue order in urgent cases of nuisance or apprehended danger.- (4) No order under this Section shall remain in force for more than two months from the making thereof :provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct the at an order made by a Magistrate under this Section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-Section (4 ). "a combined reading of the aforesaid provisions makes it clear that the State Government is empowered to increase the duration of an order passed by a Magistrate and unless such a course is adopted by the State Government, no order under Section 144 can remain in force for a period more than two months. It is trite saying that what cannot be done directly cannot be permitted to be done indirectly. If the Executive Magistrate or any other authority felt the necessity of continuance of an order under Section 144, the appropriate course would have been to approach the State Government under Section 144 (4), Proviso, In this case, It is apparent that the Executive Magistrate without proper application of mind to the mandatory provisions of law has tried to porpotuate his own order by passing successive orders in respect of the self-same dispute. Even without seeking for extension of the duration of the order under the proviso, the Executive Magistrate could have taken resort to other provisions of the Code, such as Section 107, or Section 145, if it was felt absolutely, necessary in order to maintain law and order, but he had no jurisdiction to perpetuate or extent the duration of his own order in the indirect manner adopted by him. This conclusion of mino is supported by the Division Bench decision reported in AIR 1925 Calcutta, 625 : 26 Cri LJ 874 (Ashutosh Roy v. Haris Chandra Chattanadhya ). There is another reason is to why the notice of the Executive Magistrate and vitiated. As evident from the narration of events, the term of the earlier