Conversion of a proceeding from Section 144 to Section 145, CrPC can only be done before the expiry of the two-month period, and a parallel proceeding u/s 145, Cr PC cannot be allowed to continue when a civil suit is pending between the parties.

JUDGMENT :

R.K. Dash, J. - This petition u/s 482, Cr PC is filed invoking inherent power of the Court to quash the order of the learned Executive Magistrate passed in Misc. Case No. 41 of 1990 converting the proceeding u/s 144. Cr PC to one u/s 145 and subsequent order declaring the possession of the opposite party (first party in the Court below) in respect of the land in question.

2. The disputed land appertains to plot No. 531 under Khata No. 61 of mouza Dangulu, P. S. Sadar, District Phulbani. On an application being filed by the opp. party that there was likelihood of commission of breach of peace concerning the disputed land, learned Subdivisional Magistrate, Kondhamal, Phulbani, initiated a proceeding u/s 144, Cr PC on 25-7-1990 and restrained both the parties to enter upon the said land. In response to the notice the petitioners entered appearance and filed their show-cause. Since both parties independently advanced claim of possession, which required determination in a properly constituted proceeding, the learned SDM vide his order dated 14-11-1990 converted the proceeding to one u/s 145, Cr PC. Thereupon he proceeded with the hearing and recorded evidence adduced by the parties and ultimately passed orders declaring possession in favour of the opp. party. Aggrieved by the said order the petitioners approached the learned Sessions Judge, Phulbani, in Criminal Revision No. 47 of 1992. Upon hearing the parties, the learned Sessions Judge affirmed the lower Court's order and dismissed the revision.

3. Learned counsel for the petitioners strenuously urged that conversion of the proceeding was illegal and without jurisdiction, because the initial order, life span of which, was for two months, had expired on 25-9-1990 and therefore, the learned Magistrate became functus officio to pass any order much leas the impugned order converting the proceeding to one u/s 145, Cr PC. He further contended that for the self-same disputed land a civil suit filed by the opp. party is pending for adjudication and in view of the settled position of law. a parallel proceeding u/s 145, Cr PC should not have been allowed to continue.

4. Learned counsel for opp. party, on the other hand, argued that this petition u/s 432, Cr PC which is in the nature of a second revision is not legally maintainable and further, finding of possession having been determined by the Magistrate and confirmed by the revisional Court, should not be interfered with in exercise of inherent power.

5. Section 144, Cr PC under Chapter X-C is intended for temporary order in cases of grave emergency and is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. It is the urgency of the situation that warrants for taking action under the section and even an ex parte order can be passed when the consequences are sufficiently grave. It is not an ordinary power from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power in its efficacy and in the extent of its application. So. while passing ex parte order the Magistrate should be satisfied either from the police report or other information that the matter is urgent and immediate prevention or speedy remedy is necessary to avert the apprehended danger. The order passed u/s 144, Cr. PC is purely temporary in nature and as provided in Sub-section (4), it remains in force only for a period of two months from the date of passing thereof. So, the life span of the order being two months, it automatically comes to an end on the expiry of the said period and the Magistrate becomes functus offcio to pass any further order. However, before expiry of the period if he is satisfied from the very same police report or the information on the basis of which action has been taken u/s 144 that there is scramble for possession between the parties concerning the land in question and breach of peace is