Madras High Court
Smt.Latha vs The Sub-Divisional Executive on 1 March, 2012
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/03/2012 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRL.R.C.(MD) No.824 of 2011 and M.P. (MD)No.1 of 2011 1.Smt.Latha 2.N.Manivannan ..Petitioners Vs 1.The Sub-Divisional Executive Magistrate cum Revenue Divisional Officer Trichy 2.The Inspector of Police Somarasampettai Police Station Srirangam Trichy ..Respondents Prayer Criminal Revision case filed under Sections 397 r/w 401 of Cr.P.C. to set aside the initiation of proceedings in Na.Ka.No.A1/5355/2011 dated 12.09.2011 on the file of Sub-Divisional Executive Magistrate cum Revenue Divisional Officer, Trichy. !For Petitioner ... Mr.Veera Kathiravan ^For Respondent ... Mrs.S.Prabha, Govt. Advocate (Crl.Side) :ORDER
The arguments advanced by Mr.Veera Kathiravan, learned counsel for the petitioner and by Mrs.S.Prabha, learned Government Advocate (Crl.Side) representing the respondents were heard.
2. The present revision has been filed challenging the summons dated 12.09.2011 issued by the Sub Divisional Executive Magistrate/Revenue Divisional Officer, Tiruchirappalli in his proceedings in Na.Ka.No.A1/5355/2011 under section 145 of the Criminal Proceedure Code, 1973 directing the petitioners herein and two other persons citing them as 'A' party and eight other persons citing them as 'B' party to appear before the said Executive Magistrate at 4.00 p.m on 17.09.2011 for an enquiry under section 145 of Cr.P.C.
3. The said summons is challenged on the short ground that the summons was not preceded by an order expressing satisfaction regarding existence of a dispute likely to result in breach of peace with reasons for entertaining such a subjective satisfaction that such an order been not even been incorporated in the summons and that hence the very summons is liable to be set aside. In support of the contention of the petitioners, 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
4. 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.
5. The learned Government Advocate (Crl.Side) is not in a position to dispute the fact 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 summons 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, Trichy is vitiated and the same is liable to be set aside on the above mentioned short ground itself.
6.Accordingly, the Criminal Revision Case is allowed and the summons, dated 12.09.2011, passed in Na.Ka.No.A1/5355/2011, on the file of the the Sub- Divisional Magistrate-cum-Revenue Divisional Officer, Trichy is set aside. Consequently, connected Miscellaneous Petition is closed. It is open to the Sub-Divisional Executive Magistrate cum Revenue Divisional Officer to pass a preliminary order under section 145(1) expressing satisfaction regarding the existence of a dispute regarding land, boundary or water etc. which is likely to cause a breach of peace and that such a satisfaction should be made with reference to the date of passing of such an order and not with reference to the date of the summons, which is set aside by this court in this revision.
asr To
1.The Sub-Divisional Executive Magistrate cum Revenue Divisional Officer Trichy
2.The Inspector of Police Somarasampettai Police Station Srirangam Trichy
3.The Assistat Public Prosecutor Madurai Bench of Madras High Court Madurai