The power under Section 144, Code of Criminal Procedure is to be exercised sparingly and only in case of urgency to prevent imminent breach of peace. The Magistrate must consider the fact situations and be prima facie satisfied about the necessity of the order.

JUDGMENT :

P.K. Mohanty, J. - The Petitioner assails the order of the learned Executive Magistrate, Kendrapara passed u/s 144, Code of Criminal Procedure restraining him from entering upon the case land until further orders.

2. The present case has become infructuous since the restraint order passed u/s 144 (2), Code of Criminal Procedure by the learned Executive Magistrate on 29.10.1998 has lapsed by afflux of time in terms of Sub-section (4) of Section 144, Code of Criminal Procedure But, however, keeping in view the facts and circumstances of the case and the submissions made by the learned Counsel for the Petitioner, it is necessary to discuss the short facts and circumstance of the case and as to how the proceedings are initiated u/s 144, Code of Criminal Procedure and the process is abused by the interested parties and under advantage has been taken of, without recourse to proper and appropriate provision and forum.

3. Sri Pradhan, learned Counsel for the Petitioner submitted that on a consideration of the background of the case, and the manner in which successive applications u/s 144, Code of Criminal Procedure is made suppressing material facts and orders are obtained to the detriment of the present Petitioner in spite of a clear right, title, interest and possession over the disputed land. It is submitted that in the year 1986 Opp. Party No. 1 having decided to sell a portion of the disputed property to the extent of Ac.3.305 decs. and the Petitioner and opp. party No. 1 having executed an agreement for sale of the property, but however, opp.party No. 1 having subsequently changed his mind being influenced by the interested person and having not registered the property in favour of the Petitioners, the Petitioner had filed title suit in the court of the learned Subordinate Judge, Kendrapara. The learned subordinate Judge in his order dated 21.7.1989 under order 39 Rule 1, Code of Criminal Procedure, issued an interim order of injunction against the opp. parties restraining them from selling the land to any other person and the matter is still pending. In the year 1988 the Petitioner had also filed O.L.R. Case against opp.party No. I and Ors. before the Tahasildar and Revenue Officer, Kendrapara and the Revenue Officer in O.L.R. Case No. 3 of 1988 declared the Petitioner as a Bhag tenant under the opp. party-landlord T.K. Bhoumik and Ors. on payment of bhag dues in respect of Ac.9.17 decs. of land, which is the other part of the disputed property. Thus, for a part of the property, the Civil suit was pending and an order of injunction was issued by the Civil Court whereas for the rest of the properties, the Petitioner was declared as tenant and, therefore, it is the contention of the learned Counsel for the Petitioner that the initiation of a 144 Code of Criminal Procedure proceeding and the order restraining them has been passed because of suppression of real and material facts. It is further submitted that in the previous years also the opp.party resorted the same method in obtaining order of restraint u/s 144, Code of Criminal Procedure suppressing the material facts and in the process has misappropriated the usufructs and the crops raised at the toil and labour of the Petitioner. Further a 107, Code of Criminal Procedure proceeding is also pending against the opp. parties. Learned Counsel submits that in the aforesaid background of the case, even though the present petition has become infructuous by afflux of time, this Court should consider the case and make observation with regard to the scope and power of the learned Executive Magistrate to issue Section 144, Code of Criminal Procedure order in such situations.

4. Law is well settled that power u/s 144, Code of Criminal Procedure posted with the Magistrates are intended to be exercised sparingly in case of urgency of situation for prevention of imminent breach of public peace and tranquility. Such is an executive order passed in due performance of an executive functi