IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27638 of 2009 DR.SMT.SHEELA JHA Versus STATE OF BIHAR & ORS ----------- 4. 11.8.2010. Heard Sri Gopal Jha, learned counsel appearing for the petitioner and also heard Sri Maya Nand Jha, learned counsel appearing for the State of Bihar and also for the Sub Divisional Magistrate, Benipatti who has been impleaded as Opposite Party no.2. The petitioner seeks the quashing of notice dated 25.6.2009 issued by the Opposite Party no.2, S.D.M., Benipatti against the present petitioner calling upon her to show cause as to why a complaint under Section 188 IPC be not filed as she had, in spite of the order under Section 144 Cr.P.C., and also in spite of being prohibited by the police not to do so, constructed her house on the disputed property on 28.5.2009. The undisputed facts are that the order under Section 144 Cr.P.C. was initiated on 25.2.2009 and it finally expired on account of the lapse of 60 days on 26.4.2009. Thus, it could be not acceptable that after 26.4.2009 there was any order existing which could have prohibited either of the parties to - 2 - go to the disputed property on account of the promulgation of prohibitory nature of the order in respect of that particular property. Even on assuming that the petitioner had accompliced the act complained of this could be plainly clearly act was complained of by the S.D.M., Benipatti has committed on the 28th of May, 2009, i.e., two days after the order had a statutory death when there was no order in existence. There was no violation of any such order and as such the issuance of notice to the petitioner appears completely not only in excess of the jurisdiction of the S.D.M., Benipatti but appears an utter abuse of his powers created by the statement of the parliament. Before issuing the notice it was desirable that the S.D.M., Benipatti should have examined the pros and cons of the matter especially the legal provision and the period for which a prohibitory order under Section 144 Cr.P.C. could be inexistence and then should have issued the notice. His advice not to do in future because issuing a notice of the nature which has been quashed in reality creates some impression in enjoying the fundamental rights of freedom as also the - 3 - statutory right of enjoying the freedom and besides being treated in a just man. The petition is allowed. B.Kr. ( Dharnidhar Jha, J. )