Madras High Court
Swarnamoorthy vs The Executive Magistrate on 14 June, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.R.C.No.422 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order Reserved on : 10.06.2022
Order Pronounced on : 14.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.422 of 2022
Swarnamoorthy .. Petitioner
Versus
1. The Executive Magistrate
-cum-Revenue Divisional Officer,
Hosur, Krishnagiri District.
2. Ramakrishnappa
3. Venkatesappa
4. Jayeendrappa .. Respondents
Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of
Cr.P.C., to set aside the order in Na.Ka.No.3093 of 2021 (B1), on the file of
the Executive Magistrate-cum-Revenue Divisional Officer, Hosur,
Krishnagiri District, dated 15.03.2022.
For Petitioner : Mr.V.Raghavachari
For Respondents : Mr.S.Vinoth Kumar
Government Advocate (Crl. Side)
for R1
Mr.V.Karthik, Senior Counsel
https://www.mhc.tn.gov.in/judis
1/10
Crl.R.C.No.422 of 2022
assisted by Mr.R.Gopinath
for RR-2 to 4
ORDER
This Criminal Revision Case is filed, aggrieved by the order of the first respondent, dated 15.03.2022, passed in exercise of the powers under Section 145 of Code of Criminal Procedure. The Revision Petitioner is the ‘B' Party. The respondents 2 to 4 are the ‘A' parties. A & B parties are brothers and so, there is a conflict.
2. The grievance of 'A' Party is that they are the owners of the agricultural lands in S.Nos.701, 702 and 703, having been in possession and enjoyment of the same through partition and also by purchasing from the 'B' party himself. There was a pathway of 15 feet width in S.No.564 which was used by them for the past 30 years as cart-track which is the way to their lands and also to transport the harvest. Suddenly in the month of May, 2021, the 'B' party blocked the pathway by fending the property in S.Mudhuganapalli S.No.564.
3. The claim is resisted by 'B' party stating that he is the absolutely owner of S.Mudhuganapalli S.No.564. There is already a decree for https://www.mhc.tn.gov.in/judis 2/10 Crl.R.C.No.422 of 2022 declaration and permanent injunction, dated 02.02.1996 in O.S.No.217 of 1995. He is cultivating the properties by planting trees and therefore, to protect the trees, he has fenced his property. He denies that there is any right of pathway.
4. After an enquiry, the first respondent passed the impugned order , the operative portion reads as follows :
“vdnt. ,e;jpa trjpa[hpikfs; rl;lk; 1882 gphpt[ ?13d; vLj;Jf;fhl;Lfs; gj;jp “m” kw;Wk; “M” y; bjhptpf;fg;gl;Ls;s tpjpfspd;go nkw;go KfY}h; fpuhk g[y vz;/705. 706. 707 Mfpa epy';fSf;F v!;/Kj;Jfhdg;gs;sp fpuhk g[y vz;/564 epyj;jpd; tHpahf 'm' jug;gpduhy; gaphplg;gl;L te;j kh. bjd;id ku';fspd; kfNypid re;ijg;gLj;Jtjw;fhf vg;bghGJk; gad;gLj;jpf;bfhs;syhk; vdt[k; rl;lk; kw;Wk; xG';F gpur;rpid jtphpf;Fk; bghl;Lk; ,jd;K:yk; Mizaplg;gLfpwJ”/ (It is therefore ordered that 'A' party can always use the pathway through S.Mudhuganapalli S.No.564 for marketing their harvest from the Mango and Coconut trees cultivated by them in Mugalur village S.Nos.705, 706 and 707, as per the rules contained in paragraph Nos.(a) and (b) of Section 13 of Indian Easements Act, 1882).
https://www.mhc.tn.gov.in/judis 3/10 Crl.R.C.No.422 of 2022
5. Mr.V.Raghavachari, the learned counsel appearing for the petitioner would submit that there is already a civil court decree in favour of the 'B' party and therefore, the impugned order is illegal. The procedure adopted by the first respondent is also incorrect inasmuch as there is no preliminary order passed recording satisfaction about any likely breach of peace before issuing summons to the parties. He would submit that the first respondent exceeded the scope of his powers under Section 145 Cr.P.C.
The learned Counsel relies upon paragraph Nos.6, 9, and 11 of the judgment of the Hon’ble Supreme Court of India in Ashok Kumar Vs. State of Uttarkhand and Ors. [(2013) 3 SCC 366], to contend that the nature of order passed way beyond the jurisdiction exercised. For the proposition that the procedure adopted by the first respondent in not passing a preliminary order is erroneous, the learned counsel relied upon the Judgment of this Court in Kailasa Thevar and Another Vs. Ramiah and Ors. [(1994) 1 LW (Cri) 201].
6. Mr.V.Karthik, the learned Senior Counsel appearing for the respondents Nos.2 to 4 would submit that the Civil Court decree was a compromise decree with regard to ownership of the property and therefore, https://www.mhc.tn.gov.in/judis 4/10 Crl.R.C.No.422 of 2022 has nothing to with the present conflict relating to easementary right. As a matter of fact, even in the original partition deed, dated 30.01.1976, the schedule reads thus :
“ khK:y; ghij ePh; ghrdk;
jilbra;af;TlhJ”
(Usual pathway and irrigation should not be obstructed)”
7. The pathway was suddenly blocked, leading to a law and order situation and therefore, the power is rightly exercised by the first respondent. He would submit that passing of preliminary order was not mandatory on all occasions. He would submit that 'A' party would be put to grave prejudice by blockage of pathway and even if this court remands the matter back to the first respondent for violation of procedure, appropriate direction may be given so as to maintain the status quo prior to May, 2021, so as to enable the respondents to use the pathway.
8. The nature and scope of powers under Section 145 Cr.P.C. has been explained and laid down in clear terms by the Constitution Bench of the Hon’ble Supreme Court of India in M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) Vs. Mahant Suresh https://www.mhc.tn.gov.in/judis 5/10 Crl.R.C.No.422 of 2022 Das & Ors. [(2020) 1 SCC 1)] and it is necessary to extract pargraph Nos.
295 & 296 which read as follows :
“295. Section 145 is recognised to be a branch of the preventive jurisdiction of the Magistrate. [Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal, 20th Edn. (2016) at p.
426.] Section 145(1) can be invoked on the satisfaction of the Magistrate that “a dispute likely to cause a breach of the peace exists…”.
The provision relates to disputes regarding possession of land or water or its boundaries which may result in breach of the peace. The function of the Magistrate is not to go into questions of title, but to meet the urgency of the situation by maintaining the party in possession. The Magistrate is empowered to call upon the parties to put in written statements in support of their claim to “actual possession”. Such an order is to be served as a summons upon the parties. The Magistrate is to peruse the statements, hear the parties and weigh the evidence, in order to ascertain who was in possession at the date of the order. The Magistrate may make that determination “if possible” to do so. Moreover, the determination is about the factum of possession on the date of the order “without reference to the merits of the claim of any of such parties to a right to possess the subject of the dispute”. These words indicate that the Magistrate does not decide or adjudicate upon the contesting rights to possess or the merits of conflicting claims. The Magistrate is concerned with determining only who was in possession on the date of the order. If possession has been wrongfully taken within two months of the order, the person so dispossessed is to be taken as the https://www.mhc.tn.gov.in/judis 6/10 Crl.R.C.No.422 of 2022 person in possession. In cases of emergency, the Magistrate can attach the subject of the dispute, pending decision. The action ultimately contemplated under Section 145 is not punitive, but preventive, and for that purpose is provisional only till a final or formal adjudication of rights is done by a competent court in the due course of law. Thus, nothing affecting the past, present and future rights of parties is contemplated under the provision.
296. The object of the provision is merely to maintain law and order and to prevent a breach of the peace by maintaining one or other of the parties in possession, which the Magistrate finds they had immediately before the dispute, until the actual right of one of the parties has been determined by a civil court. The object is to take the subject of dispute out of the hands of the disputants, allowing the custodian to protect the right, until one of the parties has established her right (if any) to possession in a civil court. [Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal, 20th Edn. (2016) at p.
427.] This is evident from the provisions of sub- section (6) of Section 146. The Magistrate declares the party which is entitled to possession “until evicted therefrom in due course of law”. While proceeding under the first proviso, the Magistrate may restore possession to a party which has been wrongfully and forcibly dispossessed. No party can be allowed to use the provisions of Section 145 for ulterior purposes or as a substitute for civil remedies. The jurisdiction and power of the civil court cannot in any manner be hampered. [Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal, 20th Edn. (2016) at p. 451.]” https://www.mhc.tn.gov.in/judis 7/10 Crl.R.C.No.422 of 2022
9. Therefore, it may be seen that the present order (i) declares an easementary right; (ii) grants a permanent relief to use the pathway; (iii) virtually takes over as Civil Court; (iv) does not record any urgency of the situation; (v) does not advert to in what manner there is imminent likelihood of breach of peace, except to mention that to avoid law and order situation;
(vi) goes into the actual title of the parties rather than concentrating on the actual use of the pathway or otherwise; and thus, absolutely not in consonance with any of the principles or requirements or manner of exercise of power under Section 145 Cr.P.C., and accordingly, is liable to be set side as illegal and exceeding jurisdiction.
10. The Criminal Revision Case is therefore allowed on the following terms :
(i) The order of the first respondent bearing Na.Ka.No.3093 of 2021 (B1), dated 15.03.2022 is set aside;
(ii) However, the respondents 2 to 4 would be at liberty to approach the Civil Court for redressal of their grievance and that is not the only way out, as this Court would like to remind the parties that family conflicts, https://www.mhc.tn.gov.in/judis 8/10 Crl.R.C.No.422 of 2022 however escalated they may be, even decades old, are like the fog disappearing in the sunlight, if the members of the family sit across, communicate in an open, honest and polite manner, and attempt to resolve;
(iii) Consequently, Crl.M.P.Nos.6756 and 4284 of 2022 are closed.
14.06.2022 Index : yes/no Speaking order/Non-speaking order grs To The Executive Magistrate
-cum-Revenue Divisional Officer, Hosur, Krishnagiri District.
https://www.mhc.tn.gov.in/judis 9/10 Crl.R.C.No.422 of 2022 D.BHARATHA CHAKRAVARTHY, J., grs Pre-Delivery order in Crl.R.C.No.422 of 2022 14.06.2022 https://www.mhc.tn.gov.in/judis 10/10