Karnataka High Court
Bisse Gowda And Ors. vs State Of Mysore By Bethamangala Police, ... on 2 August, 1968
Equivalent citations: 1969CRILJ1170
ORDER M. Sadasivaiya, J.
1. The petitioners were the members of the second party in 0. M. C. No. 17 of 1966 in the Court of the Sub. Divisional Magistrate, Kolar. In that case, the present respondents were the members of the first party. Proceedings had been taken under Section 145 of the Criminal P.C., in respect of survey No. 1 of Doddakari village of Bangarapet Taluk. The preliminary order had been made by the Magistrate on 27.4.1966 and the final order was made on 16-10-1967. It is the validity of this final order that is now attack, ed in this criminal revision petition.
2. I have heard Sri Byra Reddy, Advocate for the petitioner, Sri V. Tarakaram who has appeared for the respondents and Sri Rego Advocate, for the State Public Prosecutor.
3. The conclusion which has been reached by the learned Magistrate in his final order to the effect that as on the date on which the preliminary order had been made, the members of the first party were in possession at land to which the dispute petitioned, has been made after a consideration of the documentary evidence (which consisted of certain documents like, lease deed, mortgage deed and also affidavits filed by the parties and other persona.) Having regard to the view which I propose to take in the case, I consider it unnecessary to express any opinion in regard to the correctness or otherwise of the view taken by the learned Magistrate in his final order, on the question of possession.
4. It was strongly urged by the learned Advocate far the petitioners that the learned Magistrate did not have the jurisdiction to make the preliminary order, in view of the fact that in the said order the Magistrate has not recorded the grounds on which he was satisfied that there was a likelihood of the breach of the peace. The contention is that in the absence of the Magistrate placing on record, as part of the preliminary order, the said grounds, the magistrate would not have the jurisdiction to proceed to make a preliminary order.
5. That preliminary order is as follows: --
In the Court of the Sub-Divisional Magistrate, Kolar.
Case No. CM. C. 17/661st Party Government v. 1. K. M. Nanjundagowcla. (Bethamanagala
2. Sonnappa.
Police) II Party
1. Basegowada.
2. B. Munegowada.
3. B. Nanjundegowda.
4. Ramappa.
5. Mekalappa @ Muniswamy.
6. Narayanagowda.
7. Muniswamy.
8. Bamappa.
9. Thippanna.
10. Krishnappa.
11. Bamappa.
12. E.M. Maregowda.
13. Chinnappiah.
All are residents of Doddakari.
27-4-1966. The I. O., has been examined. Prom his evidence and also from the other papers produced in this case, I am satisfied that there is a sufficient prima facie evidence on record to show that there is a dispute between the members of the 1st party and 2nd parties which is likely to lead to a breach of peace, regarding the harvesting the tamarind fruits, situated in S. No. 1 of Doddakari village, Bethamangala Hobli, Bangarpet Taluk and home the following order is passed.
ORDER As a dispute which is likely to result in a breach of peace exists between the members of the 1st Party and 2nd parties regarding the tamarind fruits in S. No. 1 of Doddkari village notice shall be issued to members of both the parties to appear before this Court by 4-5.66 and to put in their written statements with their respective claims in respect of the fact of actual possession of the said tamarind fruits in the above said Survey numbers and also to produce documents and affidavits on which they should reply in support of their respective claims.
As the tamarind fruits in question is required to be immediately harvested, it is further ordered that these tamarind fruits standing in S. No. 1 of Doddakari village shall be attached under Section 145(4), Criminal P.C., and the Tahsildar of Bangarpet taluk is appointed as a Receiver to take possession of the game and also to have tamarind fruits of the same harvested and to produce the sale proceeds thereof in the Court.
A copy of this order shall be served upon the members of both the parties and it shall also be sent to the Tahsildar, Bangarpet for further action in the matter.
4. Notice to parties and also await reply from the Tahsildar, Bangarpet by 4-5.1966.
Sd/-
Sub-Divisional Magistrate, Kolar Sub. Division, Kolar.
28.4 It will be noticed that the order itself, does not state the grounds on which the Magistrate formed the opinion or was satisfied, that there was likelihood of a breach of the peace. That order is in a set form. The proceedings of 27-4-1966, no doubt, shows that the I. 0. had been examined. It is pointed out by Sri Tatakaram that from the evidence of the I.O. and from the other papers' produced before the Magistrate, the Magistrate was satisfied that there was sufficient prima facie evidence on record to show that there was a dispute between the members of the 1st party and the members of the second party, which was likely to lead to a breach of the peace. But, what is more important is, that the grounds on which the Magistrate reached the conclusion that there was a likelihood of the breach of the peace, have not been set out, either in the proceedings of 27-4-1966 or in any pars of the order. The contention of Sri Byra Reddy is that the absence of statement of grounds, vitiates not merely the preliminary order but also the entire proceedings which followed.
6. Sri Byra Reddy has relied on a decision reported in (1967) 1 Mys LJ 218, Y. K. Puttanniah v. Y. R. Bhadrappa, where it has been pointed out that a mere statement in the order of the Magistrate that he was satisfied from the police report is cot enough, hat he must state the grounds of his being so satisfied which alone entitles him to make the order. The same view has been taken in another unreported decision of this Court in Criminal Revn. Petn. No. 153 of 1965, D/- 5-7.1965 Mys). There also, the contention was that the Magistrate should state the grounds of his being satisfied that there was a likelihood of the breach of the peace. It is pointed out that a mechanical statement that the Magistrate was satisfied, would be insufficient.
7. On the short point above discussed, this revision petition will have to be allowed. It will be unnecessary to advert to the other contentions which have been raised.
8. It was pointed out by Sri Tarakaram that the petitioners did not approach this Court earlier at the time when the preliminary order was made, that since then, the final order has been passed and that this Court is not under a necessity of intervening, in exercise of its revisional jurisdiction. It is, no doubt, true that the petitioners have approached this Court at a later stage and not immediately after the preliminary order was passed. But, if the Magistrate was entitled to make this order only on condition that be should state the grounds for being satisfied that there was likelihood of breach of the peace, then, the preliminary order made without stating those grounds, would be an order without jurisdiction. Therefore, the mere fact that subsequently the final order has been made, will not have the effect of rendering the proceedings valid. The proceedings having been taken under a preliminary order made without jurisdiction, ace liable to be quashed.
9. In the result, this revision petition is allowed and the order made by the learned Magistrate is set aside.