Madras High Court
R.Ayyappan vs The Sub-Divisional Magistrate/ on 29 February, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29/02/2012
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
CRL.R.C(MD)No.12 of 2012
and
M.P(MD)No.1 of 2012
R.Ayyappan ..Petitioner
Vs
1. The Sub-Divisional Magistrate/
Revenue Divisional Officer,
Periyakulam,
Theni District.
2. The Inspector of Police,
Allinagaram Police Station,
Allinagaram,
Theni District.
3. S.K.Arulkumar ..Respondents.
Prayer
Criminal Revision case filed under Sections 397 and 401 Cr.P.C., to call
for the records from the Lower Court and to set aside the order passed in
M.C.No.279/2011/A-4, dated 06.01.2012, on the file of the The Sub-Divisional
Magistrate-cum-Revenue Divisional Officer, Periyakulam, Theni District by
allowing this Criminal Revision Case.
!For Petitioner ... Mr.Veerakathiravan
for M/s. D.Anbarasu
^For Respondents ... Mrs.S.Prabha
1 and 2 Govt.Advocate(Crl.Side)
For Respondent-3 ... M/s.M.Ajmal Khan
:ORDER
By consent, the main Criminal Revision Case itself is taken up for final disposal.
2. The submissions made by Mr.Veerakathiravan, learned counsel representing Mr.D.Anbarasu, the counsel for the petitioner, by Mrs.S.Prabha, learned Government Advocate(Crl.Side),representing R1 and R2/State and by Mr.M.Ajmal Khan, learned counsel for the third respondent are heard.
3. The order of the Sub-Divisional Magistrate-cum-Revenue Divisional Officer,Periyakulam,Theni District, dated 06.01.2012 made in M.C.No.279/2011/A-4 is under challenge in the present revision. The said order was passed in exercise of the powers conferred on the Sub-Divisional Magistrate under Section 145 Cr.P.C., which is intended to prevent and avoid breach of peace.
4. The main ground on which the impugned order of the Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam, Theni District is sought to be challenged is that before ever a final order is passed under Section 145(4) Cr.P.C., the Executive Magistrate concerned should pass a preliminary order under Section 145(1) Cr.P.C., expressing satisfaction that a dispute concerning any land or water or the boundaries thereof within his local jurisdiction has arisen and it is likely to cause a breach of peace; that while doing so, the Executive Magistrate should also state the grounds for having such a satisfaction; that in this case, without issuing such a preliminary order expressing such satisfaction, straightaway a notice came to be issued by the Executive Magistrate calling upon the parties to attend his Court and make their submissions and that on their appearance, a final order came to be passed under sub-section (4) of Section 145 Cr.P.C.
5. According to the petitioner, the said procedure adopted by the Executive Magistrate is not one contemplated under Section 145 Cr.P.C., and the non-observance of the procedure contemplated under Section 145(1) Cr.P.C., will vitiate the proceedings. In support of the contention of the petitioner, the following judgments have been cited:
1) Ponnammal and another .vs. State, represented by Revenue Inspector, Kinathukadavu and others reported in 2003(4) CTC 232.
2) Mrs.Thamaraiammal and another .vs. The Executive Magistrate-cum-
Revenue Divisional Officer, Chengalpattu and another reported in 2007 CRL.L.J 1885.
3) M.Krishnamoorthy .vs. P.M.Neelamegham and others reported in 2003 CRL LJ 3829.
4) Ganesan and 7 others .vs. The Revenue Divisional Officer-cum-Sub- Divisional Magistrate, Tiruchengode and others reported in 2010-2-L.W.(Crl)961
6. In all those judgments/orders, it has been held that an order under Section 145(4) Cr.P.C., shall be preceded by a preliminary order expressing the grounds on which the Executive Magistrate was satisfied with the existence of a dispute which is likely to cause breach of peace and that any notice issued under Sub-Section(1) of Section 145 Cr.P.C., without expressing such satisfaction and the grounds for having such satisfaction is invalid in law and the proceedings based on such notice shall be vitiated.
7. The learned counsel for the actual contesting respondent, namely the third respondent has fairly conceded that the Sub-Divisional Magistrate did not follow the procedure of passing a preliminary order expressing his satisfaction regarding the existence of a dispute likely to cause breach of peace in the area and hence, the notice calling upon the parties to appear and make their submissions was not in conformity with the Section 145(1) Cr.P.C. This Court comes to the conclusion that the order of the Sub-Divisional Magistrate-cum- Revenue Divisional Officer, Periyakulam, Theni District is vitiated and the same is liable to be set aside on the above mentioned short ground itself.
8.Accordingly, the Criminal Revision Case is allowed and the order, dated 06.01.2012, passed in M.C.No.279/2011/A-4, on the file of the the Sub- Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam, Theni District is set aside. It is open to the Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam, Theni District to take appropriate action, if he deems it fit, by following the procedure contemplated under Section 145(1) Cr.P.C. Consequently, connected Miscellaneous Petition is closed.
vsn To
1. The Sub-Divisional Magistrate/ Revenue Divisional Officer, Periyakulam, Theni District.
2. The Inspector of Police, Allinagaram Police Station, Allinagaram, Theni District.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.