Andhra Pradesh High Court - Amravati
Smt K. Vanaja, vs The State Of Andhra Pradesh, on 27 April, 2022
1
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.3646 of 2021
ORDER:
This Writ Petition is filed questioning the initiation of proceedings under Section 145 of Cr.P.C. by the 3rd respondent, despite pendency of the civil suits and other litigations.
This Court has heard Sri Maheswara Rao Kuncheam, learned counsel for the petitioners, learned Government Pleader for Revenue appearing for respondents 1 to 3, learned Government Pleader and Home appearing for respondent No.4 and Sri Ch. Venkat Raman, learned counsel for the 5 th respondent.
Learned counsel for the petitioners submits that the invocation of Section 145 Cr.P.C. and the initiation of proceedings thereunder are totally incorrect. He points out that there are civil cases pending with regard to the same property. The 1st petitioner is claiming title to the property through a sale deed of the year 2019. She had also secured building permission for construction and completed the construction of the building in Ground + 2 floors. The 5th respondent filed a suit in O.S.No.243 of 2015 for a specific performance of an agreement of sale dated 19.12.2012. This suit is pending and no interlocutory orders are granted in this suit. In addition, the 5th respondent also filed a case under Land Grabbing O.P.No.103 of 2019, whereunder the petitioners 2 are shown as respondents. The said case is also pending. In this case also no interim order was granted. Learned counsel submits that having failed to get interim orders the 5 th respondent used her influence and got a report prepared by the police department, which is forwarded to the 3rd respondent, who immediately issued the impugned proceedings under Section 145 Cr.P.C. Learned counsel points out that the 4th respondent-Inspector of Police gave a letter on 27.01.2021, and on the next date itself the impugned order was passed. Learned counsel for the petitioners submits that absolutely no enquiry was made into the averments of the said letter which refers to the pendency of the civil suits also. It is also submitted that while passing the impugned order the mandatory provisions under Section 145 Cr.P.C. are not at all followed. Learned counsel submits that there is no application of mind nor consideration of facts and circumstances. The procedure stipulated under Section 145 Cr.P.C., inviting objections, has also not been followed. Learned counsel relies upon the case law which is annexed to the Writ Petition, including Ram Sumer Puri Mahant v State of U.P. and Others 1 and judgments of the learned single Judges of this Court in Mettupalli China Kondappa (Died) by LRs., and others v Ramsetty Rama Rao and another2, Dr.Ratnam and others v Sub-Divisional Magistrate and Revenue Divisional 1 AIR 1985 SC 472 2 AIR 1964 AP 168 3 Officer, R.R.Dist., and Others3 and also Janga Mariamma v Revenue Dvisional Officer and Sub-Divisional Magistrate, Macherial, Adilabad District and Others4 to argue that the mandatory procedure under Section 145 Cr.P.C. should be followed and that orders under Section 145 Cr.P.C. cannot be passed when civil suits are pending.
On behalf of the revenue department-4th respondent argued that the action taken is correct and that the Court should not interfere in this matter. It is also submitted that the 3rd respondent considered the fact that there is likelihood of breach of peace and public tranquility he has passed the order. It is argued that the High Court of Andhra Pradesh in W.P.No.22852 of 2020 gave a direction to the 4th respondent to consider the representation of the petitioner therein (present 5th respondent). In accordance with the said orders the 4th respondent gave a report to the 3rd respondent to initiate the proceedings under Section 145 of Cr.P.C. Therefore, learned Government Pleader for Home justifies the action.
On behalf of the 5th respondent, learned counsel justifies the action of the 3rd and 4th respondents and he states that as the petitioners and others started construction in the site in mobilizing the men and material, the 5th respondent had to initiate the action as warranted under law. He also urges that as the rights of the parties are not crystallized and as the suit 3 2000 (1) ALD (Crl.) 528 (AP) 4 2008 (3) ALT (Crl.) 244 (SB) 4 etc., are still pending this Court should not interfere at this stage. As the order merely directed the status quo to be maintained and the preservation of the property. COURT:- This Court after considering the facts and circumstances and the counters filed by both the respondents, notices that there is no dispute about the pendency of the suit in O.S.No.243 of 2015 on the file of the IV Additional District Judge, Tirupati. It also admitted that the L.G.O.P.No.103 of 2019 is pending, which is filed by the 5th respondent against the petitioners. In both these matters no final adjudication has taken place and final orders have not been passed.
What is interesting here is the 5th respondent filed a private complaint and the same was referred to the police. They registered a Crime No.253 of 2019 and after investigation closed the same as "civil" in nature. The police also admitted that civil suit and the Land Grabbing OP are pending. It is not clear on what basis the 4th respondent came to a conclusion that there will be a likelihood of breach of peace. A reading of the letter addressed to the 3rd respondent shows that the first four pages are only a recitation of facts. While noticing the existence of documents including the sale deeds (which are referred to as a false and creative) the 4th respondent again states that the "B" party members did not produce any documents. In any view of the matter, as a responsible police officer he should have a mentioned on what basis he has come to a conclusion that there is a likelihood of breach of peace etc., 5 Nether his information for arranging at a conclusion or the data for coming to the said conclusion are visible from a reading of this. In the opinion of this Court the "formation of the opinion"
is not an empty formality. It should be based on cogent material which indicates a clear and immediate threat to public peace etc. Equally surprising is the fact that within one day i.e., 28.01.2021 the Mandal Educational Officer - 3rd respondent also came to the same conclusion. The impugned order also does not disclose that he has considered the material and come to a conclusion that there is a likelihood of breach of peace and tranquility. The pendency of the civil suits and the cases is also noted by him. Yet, without discussing the issues and in particular the need for invoking Section 145 of Cr.P.C., the impugned order is passed. The order in question does not refer to any clear incident or reports from the police with categorical details to enable the 3rd respondent to come to this conclusion. It is also clear that the 3rd respondent does not have any independent information of his own. In addition, the need or the necessity for passing such an order without hearing any of the parties is not clear. The grounds, on which he was satisfied the likelihood of breach of peace is not visible from the record. He should also indicate grounds of a likely and immediate threat to public order and tranquility. Apart from recording the satisfaction before making an order he should also immediately order notice to both the parties in the dispute to appear before 6 him on a specified date and time to put forth their case. The same is also not done in their case. Therefore, this Court has no hesitation to hold that the impugned order was passed without any application of mind and it has to be held as an arbitrary exercise of power.
The case law cited by the learned counsel for the petitioners are also squarely applicable to the facts and circumstances of the case. The judgments cited in Dr.Ratnam case (3 supra) also had similar facts. There also the Executive Magistrate clearly referred to the police officer's report and passed the order. Learned single Judge held that the Magistrate has failed to record his opinion. It is also noticed that the Magistrate also failed to call the parties to file their statements, which is mandatory under Section 145 (1) Cr.P.C. To the same effect the judgment of the learned single Judge in Janga Mariamma case (4 supra).
Last but not the least is the issue that once there are civil disputes pending and the questions are being adjudicated by a Court of competent jurisdiction the Executive Magistrate should not have passed the order in question.
An emergency or imminent situation warranting the passage of such an order is also not there. The record does not disclose the need or the necessity for the Magistrate to pass an order.
In this view of the matter, this Court holds that the Writ Petition is to be allowed. Accordingly, the Writ Petition is 7 allowed, setting aside the proceedings in Roc.No.A/42/2018, dated 28.01.2021. In the circumstances, there shall be no order as to costs.
Consequently, the Miscellaneous Applications pending, if any, shall stand closed.
__________________________ D.V.S.S.SOMAYAJULU,J Date:27.04.2022 Ssv