Madras High Court
P.Sengodan vs Nagappan on 1 April, 2015
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2015
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
Crl.R.C.No.177 of 2015
M.P.No.1 of 2015
1. P.Sengodan
2. Murugavel
3. A.S.Angammal .. Petitioner
Vs.
1. Nagappan
2. L.R.Mohan
3. L.R.Sekaran
4. The Inspector of Police,
Pallipalayam. .. Respondents
Criminal Revision filed under sections 397 r/w 401 of Criminal Procedure Code, to set aside the order, dated 12.02.2015 made in Na.Ka.No.3175/2015/C, on the file of the Executive Magistrate-cum-Revenue Divisional Officer, Tiruchengode.
For Petitioners : Mr.A.K.Kumarasamy
For 4th Respondent : Mr.P.Govindarajan,
Additional Public Prosecutor
O R D E R
Being aggrieved by the order made under Section 145(1) Cr.P.C., in Na.Ka.No.3175/2015/C, dated 12.02.2015, by the Executive Magistrate-cum-Revenue Divisional Officer, Tiruchengode, directing both the petitioners and the private respondents, to maintain status-quo and not to interfere with their respective possession and the direction to the Inspector of Police, Pallipalayam, 4th respondent to inspect and file a report, continuously, the petitioners have filed the present revision petition.
2. According to the petitioners, property to an extent of 8.16 Acres in S.No.47/2, Tokkavadu Koundenpalayam, Tiruchengode Taluk, Namakkal District, originally belonged to one Rangasamy, who died about 80 years ago. The said Rangasamy had a daughter, by name Palaniammal, through his first wife, Muthayammal. After the death of his first wife, the said Rangasamy married one Sennammal, as his second wife and through her, he had two sons and two daughters, viz., Ramasamy, Nagappan, Chinnammal and Thatyee @ Chinnammal, respectively.
3. The petitioners have further submitted that by a sale deed, dated 14.02.2006, Rangasamy, one of the sons of the Original owner sold one acre of land to his brother, Nagappan. On 09.10.2006, Palani Naicker, son of Rangasamy sold an extent of 3.08 Acres to Angammal, the 3rd petitioner herein. Smt.Palaniammal, daughter of the original owner, Rangasamy, born through his first wife, Muthayammal, by a sale deed, dated 31.08.2010, sold an extent of 1.96= acres. By a sale deed, dated 11.10.2010, the purchaser has sold the above extent of land to one Raja, who in turn, has sold the same to Angammal, 3rd petitioner herein. Another son of Rangasamy, the original owner, viz., Nagappan, the first respondent herein, though was entitled to only 1.61 acres, sold an extent of 5.08 acres to the respondents 2 and 3 herein, by a sale deed, dated 21.03.2012.
4. It is also the case of the petitioners that since both the parties have forcibly attempted to establish their rights in the property in dispute, law and order situation arose, and the 4th respondent police initiated proceedings, under Section 145 Cr.P.C., before the Executive Magistrate-cum-Revenue Divisional Officer, Tiruchengode. After enquiry, the Executive Magistrate held that since there is already a civil suit pending between the parties, in respect of the disputed property, proceedings, under Section 145 Cr.P.C., need not be enquired into and thus, closed the proceedings. The Executive Magistrate, again, at the instance of the 4th respondent, reopened the earlier proceedings, which was concluded under Section 145 Cr.P.C., and conducted a fresh enquiry and passed the impugned order on 12.02.2015.
5. Referring to Section 145 of the Code of Criminal Procedure, Mr.A.K.Kumarasamy, learned counsel for the petitioners submitted that the impugned order of the 1st respondent, is liable to be set aside, on the sole ground that the Executive Magistrate-cum-Revenue Divisional Officer, Tiruchengode, has failed to arrive at a subjective satisfaction, that there is a likelihood of breach of peace. He further submitted that the impugned order does not reflect his grounds of subjective satisfaction. Reference has been made to a decision reported in Jayaprakash Samantaray v. State reported in 2008 (1) LW (Crl.) 460.
6. Learned counsel for the petitioners further submitted that the learned Executive Magistrate cum Revenue Divisional Officer, has erred in suo-muto reopening the enquiry and passed the impugned order, which is vitiated due to lack of jurisdiction. He further submitted that the learned Executive Magistrate has also failed to take note of the civil proceedings between the same parties, pending in O.S.No.194 of 2012, on the file of the learned District Munsif Court, Namakkal.
7. Learned counsel for the petitioners further submitted that the learned Executive Magistrate has erred in holding that 'A' Party is in possession of 4.92 acres in S.No.47/2, overlooking the fact that there is no evidence to prove possession of the respondents, with any boundaries for the said extent. Placing reliance on a decision in Senthamaraikannan v. Govindarajulu reported in 1998 (II) CTC 228, he submitted that when the Civil Court is seized of the matter, regarding title and possession of the disputed property, proceedings under Section 145 of the Code, is not maintainable. For the abovesaid reasons, prayed to set aside the order.
Heard Mr.P.Govindarajan, learned Additional Public Prosecutor, appearing for the 4th respondent and perused the materials available on record.
8. Material on record discloses that when a request was made by Mr.L.R.Mohan and Mr.L.R.Sekaran for a separate patta for the lands in Survey No.47/2, Thokkavadi, Goundenpalayam Village, Thiruchengode Taluk, objections have been raised. After an enquiry and taking note of the revenue records and after considering the statements of the parties, vide proceedings in R.C.No.654/6(ii) 2012-13, dated 17.12.2012, the Tahsildar, Tiruchengode, held that since a Civil suit in O.S.No.194 of 2012, is pending, the dispute can be resolved only in the civil Court.
9. Being aggrieved by the same, the applicants, Mr.L.R.Mohan and Mr.L.R.Sekaran, have filed an appeal to the Revenue Divisional Officer, Thiruchengode. The order of the Tahsildar, dated 17.12.2012, has been sustained, by the appellate authority, vide proceeding in Ni.Mu.2530-2013 Vu, dated 10.04.2013. While things stood thus, when there was a dispute, over possessory rights, claimed by two parties and which was likely to cause breach of peace, the Inspector of Police, Pallipalayam, has registered a case in Cr.No.533/2013, dated 22.07.2013, under Section 145 of the Criminal Procedure Code and he has submitted that a report to the Sub-Divisional Magistrate and Revenue Divisional Officer, Thiruchengode, for suitable orders.
10. Taking the case on file, the said authority has issued notices to parties to the dispute. Mr.L.R.Mohan and Mr.L.R.Sekaran, representing 'A' Party, appeared before the Sub-Divisional Magistrate, Thiruchengode have submitted that under registered Sale Deed No.1896/2012, dated 21.03.2012, they have purchased the property, measuring 5.08 Acres in Survey No.47/2, Thokkavadi, Goundenpalayam Village, Thiruchengode Taluk, from one Mr.Nagappan, Mr.Sengodan and Mr.Murugesan, who have represented 'B' Party. On their side, Mr.Sengodan has appeared before the Sub-Divisional Magistrate and deposed that he has purchased 3.68 Acres in Survey No.47/2, in the name of Ms.A.S.Angammal, under a sale deed, dated 09.10.2006, from one Palani Naicker. Thereafter, under document No.10379/2010, dated 11.11.2010, he has purchased 5.04= acres of land in Survey No.47, in his wife's name, from one G.Raja Bomma Naidu. He has further stated that a suit in O.S.No.194 of 2012, was pending on the file of the learned District Munsif, Namakkal. Having regard to the rival claims of the parties, over property rights and taking note of the pendency of the civil suit in O.S.No.194 of 2012, vide proceedings in M.C.No.3 of 2014-C, dated 11.08.2014, the Sub-Divisional Magistrate, Thiruchengode, by observing that in view of the pendency of the civil suit, he cannot take any decision on the rival claim of property rights, however, directed the parties not to indulge in acts, affecting law and order. He has directed the Inspector of Police, Pallipalayam, to monitor continuously and send a report.
11. Though the petitioners in the Memorandum of Grounds in the present revision, have contended that the Executive Magistrate has erred in not passing a preliminary order, under Section 145(1) Cr.P.C., from the admission of the petitioners, in Paragraph 3 of the revision petition, it is clear that both the parties have forcibly attempted to establish their rights in the subject property and that there was a law and order situation and thus, Section 145 Cr.P.C., proceedings have been initiated.
12. When the petitioners themselves have admitted that there was a law and order problem, the Sub-Divisional Magistrate, cannot be found fault with, in taking the case on file, under Section 145 Cr.P.C. Subjective satisfaction of the dispute in existence and the likelihood of breach of peace, are candidly admitted. When the civil suit in O.S.No.194 of 2012, was pending on the file of the District Munsif Court, Namakkal, the Sub-Divisional Magistrate, vide order, dated 11.08.2014, has directed both the parties, not to indulge in acts, affecting law and order. He has also directed the Inspector of Police, Pallipalayam, to monitor and send a report.
13. From the above, it could be seen that when the Sub-Divisional Magistrate passed an order, directing them, not to indulge in acts, affecting law and order, the petitioners were not aggrieved over the said order. Reading of the order, dated 11.08.2014, also makes it clear that the Sub-Divisional Magistrate, has not finally determined the actual possession of the rivial parties, but, as an interim measure, has directed both parties, not to indulge in acts, affecting law and order. He has kept the matter for further consideration.
14. Reading of the impugned order, dated 12.02.2015, of the Sub-Divisional Magistrate, Tiruchengode, shows that subsequent to the order, dated 11.08.2014, again there was an incident in the village, over the possessory rights of the parties and on the complaint of Murugavel, representing 'B' Party, a petition in C.S.R.No.486 of 2014, dated 08.10.2014, has been registered. Mr.Sekaran, representing 'A' Party, has also given a complaint and C.S.R.No.487 of 2014, has been registered.
15. A case in Cr.No.605 of 2014, has been registered under Sections 147, 148, 341, 323, 427 and 506(ii) IPC., and investigation has been taken up by the Inspector of Police, Pallipalayam. Taking note of the subsequent events, the Investigating Officer, has submitted a report, dated 28.10.2014 to the Sub-Divisional Magistrate. Thus, it is evident that even after the initial order, dated 11.08.2014, of the Sub-Divisional Magistrate, Tiruchengode, the parties have not remained quite and indulged in acts, affecting law and order.
16. The very fact that both parties have made complaints against each other, for which, petitions have been registered in C.S.R.No.486 and 487 of 2014 and that a criminal case in Crime No.605 of 2014, has been registered, under Sections 147, 148, 341, 323, 427 and 506(ii) IPC., shows that the situation had not changed in the village and breach of peace continued. As stated supra, while passing orders on 11.08.2014, the Sub-Divisional Magistrate, has not concluded the proceedings, but has only directed the Inspector of Police, Pallipalayam, to monitor and send a report. Within two months, from the date of the said order, the parties have indulged in acts, involving law and order. Therefore, it cannot be contended that there was no preliminary order.
17. Having regard to the facts and circumstances of the case, it can be concluded that the order, dated 11.08.2014, is an order, passed under Section 145(1) Cr.P.C. As observed earlier, when the petitioner themselves have admitted in the Memorandum of Grounds that there was a law and order problem, it would be inappropriate to contend that the Sub-Divisoinal Magistrate, Tiruchengode, has failed to record the grounds of his satisfaction. Perhaps, that is the reason, why the order, dated 11.08.2014, was not challenged, by both parties. In view of the above, this Court is not inclined to accept the contention of the petitioners that the Sub-Divisional Magistrate has not recorded the grounds of satisfaction.
18. At this juncture, it is worthwhile to extract a portion of the order of the Sub-Divisional Magistrate, Tiruchengode, dated 12.02.2015, wherein, he has recorded the reasons for his subjective satisfaction, which are as follows:
'V' jug;gpdh; rkh;g;gpj;j Mtz';fspy; fpuhk eph;thf mYtyh; 31/05/2010y; mspj;j mDgt rhd;wpy; njh/ft[z;lk;ghisak; fpuhkk;. r/vz;/47-2y; tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; jpU/u';fg;gehaf;fh; kfd; ehfg;gd; vdgth; 5/08 1-2 Vf;fh; epyk; brhe;j mDgtj;jpy; cs;sJ vd rhd;wspf;fg;gl;Lw;wJ/ njh/ft[z;lk;ghisak; fpuhk eph;thf Mytyh; 15/04/2012 md;W 'V' jug;ig rhh;e;j jpU/nkhfd; j/bg/uhkrhkpft[z;lh; kw;Wk; vy;/Mh;/nrfud; j/bg/uhkrhkpft[z;lh; Mfpnahh;fspd; mDgtj;jpy; r/vz;/44-2rp tp!;j;jPh;zk; 0/06/5 bcwf;nlh; KGtJk; kw;Wk; r/vz;/47-2 tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; 4/92 Vf;fh; Mf bkhj;jk; 5/08 1-2 Vf;fh; epyk; brhe;j mDgtj;jpy; cs;sJ vd rhd;wpspj;Js;shh;/ nkYk; 25/10/2013 md;W fpuhk eph;thf mYtyh; 'V' jug;ig rhh;e;j jpU/nkhfd; j/bg/uhkrhkpft[z;lh; kw;Wk; vy;/Mh;/nrfud; j/bg/uhkrhkpft[z;lh; Mfpnahh;fspd; mDgtj;jpy; r/vz;/44-2rp tp!;j;jPh;zk; 0/06/5 bcwf;nlh; KGtJk; kw;Wk; r/vz;/47-2 tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; 4/92 Vf;fh; Mf bkhj;jk; 5/08 1-2 Vf;fh; epyk; brhe;j mDgtj;jpy; cs;sJ vd rhd;wpspj;Js;shh;/ nkYk; 10/10/2014 md;W fpuhf eph;thf mYtyh; 'V' jug;ig rhh;e;j jpU/nkhfd; j/bg/uhkrhkpft[z;lh; kw;Wk; vy;/Mh;/nrfud; j/bg/uhkrhkpft[z;lh; Mfpnahh;fspd; mDgtj;jpy; r/vz;/44-2rp tp!;j;jPh;zk; 0/06/5 bcwf;nlh; KGtJk; kw;Wk; r/vz;/47-2 tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; 4/92 Vf;fh; Mf bkhj;jk; 5/08 1-2 Vf;fh; epyk; brhe;j mDgtj;jpy; cs;sJ vd rhd;wpspj;Js;shh;/ nkYk;. jpUr;br';nfhL tl;lhl;rpahpd; 09/01/2015 njjpapl;l mwpf;ifapYk; nkw;go njh/ft[z;lk;ghisak; fpuhkk;. r/vz;/47-2y; 3/08 Vf;fh; epyk; 'gp' jug;igr; nrh;e;j jpUkjp/m';fk;khs; vd;gthpd; mDgtj;jpYk; kPjKs;s 5/08 Vf;fh; epyk; 'V' jug;igr; nrh;e;j jpU/nkhfd; kw;Wk; nrfud; Mfpnahhpd; mDgtj;jpy; cs;sjhf bjhptpj;Js;shh;/ nkw;go r/vz;/47-2I 10/12/2014 md;W nkw;bfhz;l jyj;jzpf;ifapd; nghJk; nkw;go epyj;jpd; r/vz;/44-2rp tp!;j;jPh;zk; 0/06/5 bcwf;nlh; KGtJk; kw;Wk; r/vz;/47-2 tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; 4/92 Vf;fh; Mf bkhj;jk; 5/08 Vf;fh; epyk; 'V' jug;igr; nrh;e;j jpU/nkhfd; kw;Wk; nrfud; Mfpnahhpd; brhe;j mDgtj;jpy; cs;sJ bjhpa tUfpwJ/ 'gp' jug;igr; nrh;e;j jpUkjp/m';fk;khs; vd;gtUf;F r/vz;/47-2 tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; 3/08 Vf;fh; epyk; mDgtj;jpy; cs;sJ bjhpa tUfpwJ/ vdnt. Fw;wtpak; Kiwr; rl;lk; 145d; go epyj;jpd; mDgtk; Fwpj;J nkw;bfhz;l tprhuizapYk;. bgwg;gl;l thf;FK:yj;jpYk; tUtha; Mtz';fs;. Tl;lhlrpah; mwpf;if kw;Wk; jy tprhuiz Mfpatw;wpd;go nkw;go njh/ft[z;lk;ghisak; fpuhkk; r/vz;/44-2rp tp!;j;jPh;zk; 0/06/5 bcwf;nlh; KGtJk; r/vz;/47-2 tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; 4/92 Vf;fh; Mf bkhj;jk; 5/08 Vf;fh; epyk; 'V' jug;igr; nrh;e;j jpU/nkhfd; kw;Wk; nrfud; Mfpnahhpd; mDgtj;jpYk;. 'gp' jug;igr; nrh;e;j jpUkjp/m';fk;khs; mth;fspd; brhe;j mDgtj;jpy; r/vz;/47-2 tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; 3/08 Vf;fh; epyk; cs;sJ vd Kot[f;F tu KofpwJ/ vdnt. jw;nghija R{H;epiyapy; 'V' jug;igr; nrh;e;j jpU/nkhfd; kw;Wk; nrfud; kw;Wk; 'gp' jug;igr; nrh;e;j jpUkjp/m';fk;khs; Mfpnahh; mtuth; mDgtk; bra;J tUk; epy';fis bjhlh;e;J mDgtk; bra;at[k;. Chtil gzpfs; bra;at[k; mDkjpf;fg;gLfpwJ/ nkw;go brhj;Jhpik Fwpj;J tHf;F rptpy; ePjpkd;wj;jpy; epYitapy; ,Ug;gjhYk;. brhj;Jhpik Fwpj;J jPh;khdpf;Fk; mjpfhuk; rptpy; ePjpkd;w mjpfhu tuk;gpw;Fl;gl;ljhf ,Ug;gjhYk; nkw;go jhth brhj;J Fwpj;J cl;nfhl;l epUthf eLth; ePjpkd;wj;jpy; Kot[ vJt[k; vLf;f ,ayhJ/ ,Ug;gpDk; rptpy; ePjpkd;w jPh;g;g[ tUk; riu jpUr;br';nfhL tl;lk;. njh/ft[z;lk;ghisak; fpuhkk;. r/vz;/47-2 8/16 Vf;fh; tp!;jPh;zk; cs;s epyj;jpy; ,UrhuhUf;Fs; Title Disputed; nghpy; Vw;gl;Ls;s mikjpapd;ia fl;Lg;gLj;J nehf;fj;Jld; Fw;wtpah; eilKiwr; rl;lk; gphpt[ 145(1)d; fPH; fPH;fz;lthW cj;jput[ gpwg;gpf;fg;gLfpwJ/ jpUr;brh';nfhL tl;lk;. njh/ft[z;lk;ghisak; fpuhkk; r/vz;/44-2rp tp!;j;jPh;zk; 0/06/5 bcwf;nlh; KGtJk; r/vz;/47-2 tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; 4/92 Vf;fh; epyk; Mf bkhj;jk; 5/08 Vf;fh; epyk; 'V' jug;igr; nrh;e;j jpU/nkhfd; kw;Wk; nrfud; Mfpnahhpd; mDgtj;jpYk;. r/vz;/47-2y; tp!;jPh;zk; 3/24/0 bcwf;nlh; epyj;jpy; cs;s 3/08 Vf;fh; epyk; 'gp' jug;igr; nrh;e;j jpUkjp/m';fk;khs; mDgtj;jpYk; jw;nghija epiyapnyna ,Uf;ft[k;. mtuth; mDtk; bra;J tUk; epyj;jpy; ,Ujug;gpdUk; ahbjhU ,ila{Wk; bra;af; TlhJ vdt[k;. ve;j tikahd rl;lk; XG';F rPh;Fiyit Vw;gLj;Jfpd;w epfH;t[fspYk; <Lglf;TlhJ vdt[k; cj;jputplg;gLfpwJ/ nkWk; epiyikapid bjhlh;e;J fz;fhzpj;J eltof;if vLj;J mwpf;if Mdg;g gs;spghisak;. fhty; Ma;thsUf;F cj;jputplg;gLfpwJ/
19. After registration of C.S.R.No.486 of 2014 and C.S.R.No.487 of 2014, on 08.10.2014, on the complaint of the rival parties, a case in Cr.No.605 of 2014, has been registered under Sections 147, 148, 341, 323, 427 and 506(ii) IPC., on the file of the Inspector of Police, Pallipalayam. Thus, in continuation of a preliminary order, dated 11.08.2014, directing both the parties not to indulge in acts, affecting law and order and as the situation continued to exist, as evident from the report of the Inspector of Police, Pallipalayam, dated 28.10.2014, the Sub-Divisional Magistrate, has once again, issued notices, to both the parties. Field inspection has been done. Enquiry has been conducted and the Tahsildar's Report has also been obtained. Revenue records have been considered. After ascertaining the actual possession of the lands by the rival claimants, vide order, dated 12.02.2015, the Sub-Divisional Magistrate, Tiruchengode, by observing that there is a title dispute and taking note of the pendency of the civil suit in O.S.No.194 of 2012, on the file of the District Munsif Court, Namakkal and in order to maintain peace, has passed orders. He has recorded the extent of lands in actual possession of the rival parties and directed them to continue their possession, without affecting law and order. Having regard to the events affecting law and order, he has further directed the Inspector of Police, Pallipalayam Police Station, to monitor and send a report.
20. Section 145 Cr.P.C., empowers that if the Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he can pass appropriate orders.
21. In Anandilal v. Sukhehand reported in AIR 1930 Cal 715, a Hon'ble Division Bench of the Calcutta High Court held that for making an order under Section 145, it is necessary that the Magistrate should be satisfied, at the time of drawing up the proceedings that there is, then existing a likelihood of breach of the peace arising from the disputes between the parties with regard to the land in question.
22. In Saminatha Pillai v. Raghavachariar reported in 1946 MWN (Cr.) 137, there were materials before the Magistrate, namely materials furnished in the petition itself to indicate that a breach of the peace was likely and in the circumstances, it was held that the preliminary order passed cannot be said to be invalid.
23. In Khudiram Mandal v. Jitendranath reported in AIR 1952 Cal. 713, a Hon'ble Division Bench of Calcutta High Court, held as follows:-
"Where the preliminary order under Section 145 (4) Criminal P. C. does not state the grounds of satisfaction as to the existence of a dispute likely to cause a breach of the peace the order is undoubtedly a defective order and if challenged in proper time, i.e., about the time when written statements are required to be filed or evidence led, it will be corrected or set aside."
24. In China Kondappa v. Ram Row reported in AIR 1964 AP 168, the question that arose for consideration was whether the Magistrate acted without jurisdiction in passing a final order under Section 145, Criminal Procedure Code, even though there was no preliminary order passed under Section 145 (1) Criminal P. C. It was held that it was well settled that if there was no preliminary order made at all, the subsequent proceedings culminating in the final order are vitiated and that on the other hand, if there is a preliminary order, however defective it may be, the defect would not be fatal, unless it has resulted in prejudice.
25. In Nagammal v. Mani reported in 1966 Mad LW Crl 101, this Court held that where the preliminary order was drawn by the Magistrate merely on the information laid by the Inspector of Police about the dispute, he must be satisfied that a dispute likely to cause breach of peace exists; and it is mandatory that he should state the grounds of his being so satisfied or language to similar effect must be employed to indicate that the Magistrate had applied his judicial mind to the Information In coming to the conclusion that he should take action under Section 145 (1) Criminal P. C. The learned Judge further observed that Magistrate should not take action merely on a police report.
26. In Peria Mannadha Goundar v. Marappa Goundar reported in AIR 1969 MAD. 411 = 1969 Crl.L.J. 1410 = 1969 (1) MLJ 37, this Court quashed a preliminary order, on the grounds that the Executive Magistrate has not stated the grounds for his satisfaction, as required under Section 145 of the Code. At Paragraph 8, this Court, observed as follows:
8. It is, therefore, necessary under Section 145 (1), Criminal Procedure Code, that the Magistrate having jurisdiction shall make an order in writing that he is satisfied either from a police report or other information that a dispute likely to cause a breach of the peace exists and state the grounds of his satisfaction before requiring the parties concerned in such dispute to attend his Court and put in written statements. This provision of making the order in writing and stating the grounds of his satisfaction appears to be mandatory. The words "shall make an order in writing stating the grounds of his being so satisfied" would clearly indicate that the order must be in writing and the grounds for satisfaction also must be stated. Unless the grounds are stated in the order itself, it will be difficult to test the correctness or otherwise of the order passed by the Magistrate. So, the preliminary order should state clearly the reasons and grounds on which the satisfaction is based and that the Magistrate had applied his mind in passing the preliminary order. On the aspect of not mentioning the time, when the written statements are required to be filed or evidence adduced, after considering the decision in A.Khudiram Mandal's case, [AIR 1952 Cal. 713], this Court, at Paragraph 10, held that, This decision takes the view that the validity of the final order under Section 145 Criminal P. C. could not be set aside because of omission to state the grounds in the preliminary order as such omission will be only an irregularity. But from this decision, it is clear that if an objection is taken as in the instant case, at the earliest point of time, the preliminary order can be quashed. In the above reported case, the impugned order was passed one year, after the report and therefore, on the facts and circumstances of the case, this Court observed that, The preliminary order does not say that he had any further information subsequent to the report submitted by the police that the likelihood of a breach of peace continued and on the date of the preliminary order the dispute existed. A preliminary order passed long after the information the Magistrate had in respect of the breach of the peace cannot be sustained unless the Magistrate was satisfied from any further information or enquiry that a breach of the peace existed on the date of the preliminary order.
27. In Bisse Gowda v. State of Mysore reported in 1969 Crl.L.J. 1170, it was held that, A mere statement in the preliminary order made under section 145 (1) by the Magistrate that he was satisfied from the police report that a dispute is likely to cause breach of peace, is not enough, but he must state the grounds of his being so satisfied which alone entitles him to make such an order. Noncompliance not only renders such preliminary order without jurisdiction but also vitiates the entire subsequent proceedings. Therefore, the mere fact that subsequent final order has been passed, will not have the effect of rendering the proceedings valid and the final order is liable to be quashed under section 439.
28. In Sukumar v. State of Mysore reported in 1972 Crl.L.J. 319, the Executive Magistrate has expressed his satisfaction, on the basis of facts set out in the first information Report and the police report, before him and hence, it was observed that as stated in the Supreme Court in R.H.Bhutani v. M.T.Desai [AIR 1966 SC 144], those facts were prima facie sufficient and were the reasons leading to his satisfaction and that since there were materials before him, there is no justification to think that he passed the impugned orders lightly or mechanically without being satisfied as to the existence of the conditions required by that section.
29. In Gabrial Thanakayyan v. Narayana Nadar reported in 1977 Crl.L.J. 1879, it has been held as follows:
On a careful reading of section 145 as a whole, particularly sub-section (1) it can be seen that every foundation of an action under the sub-section is the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace existed on the date of the preliminary order, concerning the possession of any land or water or boundaries thereof situated within his or her local jurisdiction. It is only on being satisfied that there is a real dispute existing concerning the possession of immovable property and that such dispute is likely to cause the breach of peace that the Executive Magistrate gets jurisdiction to initiate proceedings and pass a preliminary order under section 145 of the Code. This satisfaction he or she may get from a report of the police officer or upon other information. The Magistrate must be satisfied of the necessity to take action under section 145 of the Code, before a. preliminary order is passed and it cannot be said that in every case such satisfaction would automatically follow from a report of the police officer or upon other information. The provision in the Sub-section that the Magistrate shall make an order in writing, slating the grounds of his satisfaction is mandatory. If the grounds are not stated in the order, it will be difficult to test the correctness and validity of the order.
30. In Kulandaisami v. Sherfuddin reported in 1977 LW 187, the Court held thus, It is not every dispute that will attract invocation of section 145, Cr. P. C. by the contesting parties. The dispute must be also attended with a threatened breach of peace. A heading of chapter 10 in which section 145, Cr. P. C. occurs is Maintenance of public order and tranquility. The Magistrate is not; therefore, concerted with disputes between two or more number of parties acrimonious, however, they may be, unless there is a likelihood of such a dispute resulting in disturbance of public tranquility and resultant breach of peace. It is no doubt true that if an order is passed by a Magistrate, in exercise of his powers in favour of one of the contesting parties, the Magistrate should give reasons why he is passing that order.
31. In Ashfafi Lal v. Lath Singh reported in 1982 Crl.L.J. 1172, it has been held that, Section 145 (1), Cr. P. C. requires that the Magistrate should state the grounds of his satisfaction that a dispute exists concerning any land or water or boundaries thereof which is likely to cause a breach of the peace. Those grounds are (a) a report of a police officer, or (b) other information. He need not state any facts beyond those identifying the property and the parties. Ground means foundation or basis and the foundation or basis of satisfaction is either the police report or other information.
32. Reverting to the case on hand, as observed by the Supreme Court in R.H.Bhutani v. M.T.Desai [AIR 1966 SC 144], the Police Report, containing all the details, was very much available before the Executive Magistrate, to arrive at a prima facie conclusion that there is a dispute between the petitioners and the private respondents. While arriving at the subjective satisfaction and while passing a preliminary order, reasons recorded, need not elaborate, as in the form of a judgment, but it should reflect application of mind of the Executive Magistrate to the existence of a dispute to the subject property and whether there is any likelihood of breach of peace. To that extent, in the case on hand, the Executive Magistrate has clearly recorded that there is a dispute between the rival parties and that there was a law and order problem. When both the parties are alleged to have committed offences, against each other, thereby, a case and counter case have been registered, the Inspector of Police, Pallipalayam, has thought it fit to approach the Executive Magistrate for appropriate orders, under Section 145 of the Code.
33. In Senthamaraikannan v. Govindarajulu reported in 1998 (II) CTC 228, though an application was taken out in a suit, interim injunction was not ordered. Suit relates to property in two survey numbers. There were also institution of proceedings, under Section 145 Cr.P.C. Following the decision made in Indira v. Dr.Vasantha reported in 1990 TLNJ (Crl.) 67, wherein, it was held that, The initiation of parallel proceedings when the identical matter in respect of the disputed property was pending in a Civil Court wherein the "question of possession was involved, initiation of parallel criminal proceedings under Section 145 of Cr.P.C. would not be justified., this Court held as follows:
Here the proceedings has been initiated under Section 145 after the filing of the suit before the Civil Court. The Executive Magistrate was also apprised of this fact. When the Civil Court which is competent to grant injunction has not chosen to consider it as a fit case to grant interim injunction, it was not proper on the part of the Executive Magistrate to have ordered injunction. It virutually amounts to usurping of jurisdiction, which he has none. The Executive Magistrate ought not to have passed any order when a competent Court is seized of the same. Moreover, the order does not disclose that the Magistrate apprehended breach of peace. Therefore, in such circumstances, the order passed by the Executive Magistrate is unsupportable. It is beyond the jurisdiction of the Magistrate to have passed such an order. Therefore, the order passed by the Executive Magistrate suffers from material irregularity and the irregularity is of such a nature that cannot be cured. Therefore, I held that the order passed by the Executive Magistrate is liable to be set aside.
34. In Jayaprakash Samantaray v. State reported in 2008 (1) LW (Crl.) 460, the order passed by the learned Executive Magistrate, under Section 145 Cr.P.C., was challenged, on the grounds, inter alia that it does not reflect the satisfaction about the disputed possession or the likelihood of breach of peace and that the order did not reflect grounds of satisfaction. On the facts and circumstances of the case, this Court, at Paragraphs 7 to 9, held as follows:
7. There are three fundamental requisites to maintain an order under Section 145, Criminal Procedure Code are needed and they are, (1) there must be a report of a police officer or other information that a dispute was likely to cause breach of peace concerning the property mentioned in the section; (2) the Magistrate must be satisfied with such police report or other information that the dispute was likely to cause breach of peace; and (3) on the satisfaction of the Magistrate, he must make an order in writing stating the grounds for satisfaction in the order, under Section 145(1), Criminal Procedure Code.
8. Merely a Magistrate stating that he is satisfied from a police report or other information that a breach of peace was likely to be caused, he is recording the fact of his satisfaction but not the grounds of his satisfaction. The Order, therefore, must indicate the grounds for finding that there was likelihood of breach of peace and any non-compliance, certainly vitiates the preliminary order which is passed under Section 145(1) Criminal Procedure Code.
9. This court finds that there is a non-compliance with the provision of Section 145(1) Cr.P.C., in the impugned Order and therefore the order passed by the learned Sub-Divisional Magistrate is unsustainable.
35. Perusal of the judgment in Jayaprakash Samantaray's case (cited supra), shows that submission has been advanced that as the civil suit was still pending, orders passed under Section 145 Cr.P.C., is not vitiated and reliance has been made to a decision made in S.P.Nagarathinam v. Sub-Divisional Magistrates and Sub-Collector, Thanjavur and others reported in 1993 Crl.L.J. 1285.
36. In A.M.Krishnamurthy v. Sub-Division Magistrate and Revenue Divisional Officer, Villpuram reported in 2000 (IV) CTC 531, this Court held that it is settled law that the Executive Magistrate has jurisdiction to take action under Section 145, Cr.P.C. merely on the police report, if the report sets out the matter of dispute, the cause of dispute, its nature, the apprehension that unless the action is taken the breach of peace will ensue.
37. In Bholanth v. Rama Shanker reported in 1972 MPLJ 657, the Court held that Section 145 of the Code of Criminal Procedure confers power on the Executive Magistrate to intervene and pass a temporary order in a dispute between the parties regarding possession of land which threatens to develop into use of force causing the breach of the peace. The enquiry contemplated by this Section is intended to be a sort of summary one and it is incumbent to finish it quickly.
38. In Ganga Singh v. Raj Bahadur Singh reported in AIR 1958 All. 803, the Allahabad High Court held that, the State cannot permit that riots should be committed and heads be broken merely because two contending parties hold different opinions about their claims to the possession and ownership of some im-moveable property. It may be that the owners of property are temporarily deprived of possession of what is rightfully their property and may also be subjected to other inconveniences, but all these considerations are subservient to the imperative necessity of preserving the peace.
39. In Ram Kanwal v. Dhudhnath reported in AIR 1969 Patna 317, the Patna High Court held that a proceeding under Section 145 Cr.P.C., is of a summary nature, intended to maintain peace till the title of the respective claimants is adjudged by a competent Civil Court.
40. In Inder Singh v. State reported in AIR 1964 Raj. 81, the Rajasthan High Court held that Section 145 of the Code of Criminal Procedure is primarily meant for the prevention of breach of peace where the dispute relates to the possession of immovable property.
41. In St. George Syriam Church v. Revenue Divisional Officer reported in 2013 (3) Crimes 471 (Ker), the Kerala High Court held that even if any civil suit is pending, with no interim order affecting the right of the parties has been passed, or where application for injunction was rejected or such suit was at a very initial stage, if there is apprehension of imminent breach of peace, there is no bar in initiating proceedings under Section 145 of the Code.
42. In the light of the above decisions and in particular, St. George Syriam Church's case (cited supra), the contention of the learned counsel for the petitioner that once the civil Court has seized of the matter, in respect of title or possession, proceedings under Section 145 Cr.P.C., cannot be countenanced.
43. Primarily, proceedings under Section 145 Cr.P.C., is taken to maintain peace and law and order and not to decide the title of the property, which the Civil Court alone is competent to do so. Scope of Section 145 Cr.P.C., is to pass a temporary order, when there is a dispute over a property, which gives rise to cause for breach of peace.
44. Reverting back to the case on hand, at the instance of the 4th respondent-Police, indicating breach of peace and law and order problem, as a preliminary measure, the Executive Magistrate has passed the impugned order. Though the learned counsel for the petitioners submitted that the Executive Magistrate, Tiruchengode, has failed to arrive at a subjective satisfaction, in respect of the dispute and also the likelihood of causing breach of peace, this Court is not inclined to accept the said contentions for the simple reason that sequence of events narrated in the police report, would itself speak about the prevailing situation.
45. The reason assigned by the Executive Magistrate, Thiruchengode, is that both the parties have claimed rights and unless and until, it is decided, there should be an order, under Section 145 of the Code of Criminal Procedure. The contention of the petitioners that the impugned order does not satisfy the procedure contemplated under Section 145 of the Code of Criminal Procedure and that there is a violation of the Principles of Natural Justice, cannot be countenanced. From the impugned order, it could be deduced that the Executive Magistrate, has conducted an enquiry, giving opportunity to all the parties and then issued the order. There is no manifest illegality in the impugned order, warranting interference.
46. In the light of the above discussion and decisions, the present Criminal Revision Case is dismissed. No costs.
01.04.2015 Index: Yes Website: Yes skm To
1. The Inspector of Police, Pallipalayam.
2. The Executive Magistrate-cum-Revenue Divisional Officer, Tiruchengode.
S. MANIKUMAR, J.
skm Crl.R.C.No.177 of 2015 01.04.2015