( 1 ) THIS is a petition under Article 228 of the Constitution of India read with Section 561-A, Cr. P. C. , by Rara Das Gaur to quash the Criminal Case No. 611 of 1959 pending against him in the court of Sri M. N. Mathur, Magistrate, Varanasi, and also to declare the order dated 28-4-1959 promulgated under Section 144, Cr. P. C. to be ultra vires and of no legal consequence.

( 2 ) THE petitioner has challenged the order promulgated under Section 144, Cr. P. C. on many grounds, but as the order could not be deemed to be in force on the expiry of two months from the date of the original order, it is not necessary to express any opinion on the constitutionality of section 144, Cr. P. C. or of the order promulgated under this section.

( 3 ) THE material facts of the case are that a section of the Hindus started an agitation with regard to a mosque which was constructed under order of the Moghul Emperor Aurangzeb in place of or on the site of old Lord Vishwanath Temple. A new idol of Lord Vishwanath was installed near the mosque in another temple which exists upto now. There is a platform lying between this mosque and the temple and Hindus wanted to perform Yagya on this land. As the relations between the Hindus and Muslims were likely to be disturbed and there was an imminent possibility of disturbance of public tranquillity, the Gary Magistrate of Varanasi promulgated an order Section 144, Cr. P. C. on 23-2-1959 to be valid for a period of one month. The order was extended for a further period of one month and it ceased to be effective on expiry of the prescribed period of two months. It was on 28-4-1959 that the City Magistrate promulgated another order under Section 144, Cr. P. C. , the material portion of which runs as below : "whereas it has been made to appear to me that the Hindu Mahasabha agitation for the restoration of the Gyanvapi mosque is still continuing and that after the expiry of the orders promulgated by me under Section 144, Cr. P. C. , some persons acting in pursuance of the aforesaid agitation took advantage of the expiry of the order under Section 144, Cr. P. C. and collected near the Gyanvapi mosque on 23-4-59 and 27-4-59 and raised provocative slogans and tried to disturb the public peace and whereas it is learnt that the Hindu Mahasabha will send batches of leaders to agitate about the restoration of the Gyanvapi mosque and whereas these activities, in my opinion, are likely to lead to a breach of the peace and to disturb the tranquillity and T consider it necessary to take immediate action for the prevention of the breach of the peace, I, P. D. Chaturvedi, City Magistrate, Varanasi hereby order under Section 144, Cr. P. C. as follows :

(1) No person shall organise and no person shall take part in any assembly of five or more persons, without written permission of the City Magistrate. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5) No person shall raise any slogans or spread any rumours or shall do any act which is likely to create tension between Hindus and Muslims and to disturb the public tranquillity. Sd. P. D. Chaturvedi, City Magistrate, Varanasi 28-4-1959. "

( 4 ) THE main point for consideration is if the second order under Section 144, Cr. P. C. , shall be deemed to be in continuation of the earlier one whereby the period was extended beyond two months, or the order promulgated on 28-4-1959, is a fresh, completely new, order under Section 144. Cr. P. C.

( 5 ) THE maximum period for which an order under Section 144, Cr. P. C. can remain in force is laid down in Sub-section 6 thereof. The sub-section runs as below :

" (6) No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the State Government by not