Ganesan & Ors. v. The Revenue Dvisional Officer – cum -Sub Divisionsal Magistrate, TiruchengodeNamakkal District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.06.2010CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCrl.R.C.No.400 of 2010 and M.P.No.1 and 2 of 20101.Ganesan2.Saraswathi3.Palaniammal4.Viswanathan5.Mallika6.Duraisamy7.Kuppusamy8.Pongiammal ...Petitioners/B PartiesVersus1.The Revenue Dvisional Officer – cum -Sub Divisionsal Magistrate, TiruchengodeNamakkal District.2.The Inspector of Police, Jedarpalayam Police StationTiruchengode Taluk, Namakkal District. ... Respondent /complainant3.Kumarappan.M.4.Kumarappan.N.5.Shanmugham6.Dhanasekharan7.Saraswathi8.Chinnammal9.Ponnusamy ..Respondents/ A- PartiesCriminal revision filed under Section 397 and 401 Cr.P.C.,against the order passed by the Revenue Divisional Officer-cum-Sub Divisional Magistrate, Tiruchengode, in M.C.No.18 of 2010dated 10.03.2010.For Petitioners: Mr.T.MurugamanikkamFor Respondent: Mr.N.Umapathi for R3 to R9 Mr.V.R.Balasubramanian Additional Public Prosecutor for R1 and R.2ORDERThe revision petitioners herein are the B-parties and therespondents 3 to 9 are the A-parties in M.C.No.18 of 2010, beforethe Revenue Divisional Officer-cum- Sub Divisional Magistrate,Thiruchengode. The Inspector of Police, Jaderpalayam,Thiruchengode Taluk submitted a report before the Executive https://hcservices.ecourts.gov.in/hcservices/ Magistrate regarding the dispute between the A-parties andB-parties with regard to the existence of the situation likely tocause a breach of peace due to the dispute regarding possessionof the properties.2. The learned Executive Magistrate also sent notice toboth parties directing them to appear before him on 01.03.2010.On 01.03.2010 both the parties have appeared and writtensubmissions were filed only by A-party and they were againdirected to appear on 15.03.2010. On 15.03.2010, the ExecutiveMagistrate passed an order prohibiting both parties from usingthe properties and directing both parties to maintain status quo.3. Aggrieved by the order passed by the learned ExecutiveMagistrate on 15.03.2010, B-party has preferred this criminalrevision before this Court.4. Mr.T.Murugamanikkam, learned counsel appearing for thepetitioners/B-party submitted that the learned ExecutiveMagistrate has passed an order preventing the B-party fromentering into the property and without any enquiry, he had erredin passing an order of 'status quo' like a civil court. Thelearned counsel further submitted that though the ExecutiveMagistrate earlier issued notice to the B-party, that noticeitself was not a valid one and it is not according to therequirements under Section 145(1) Cr.P.C and further beforepassing the final order, the learned Executive Magistrate has nopower to pass an interim order of status quo and thereby causingdisturbance to the possession of the B-party. Learned counselfurther submitted that A-party purchased un-divided 5/12 and10/24 shares from one branch of the petitioners' family by saledeed dated 23.10.2009 and he also filed a suit for partition.But the civil Court has not passed any interim order. Therefore,A-party has no right to claim for possession till the partitionsuit is allowed.5. The learned counsel for the petitioner relied on thedecision of this Honourable Court reported in 1992 LW (Cri.) 579( G.Sethurman and two others vs. Miss.Meenakshi Ammal and twoothers) and 2004 (1) LW 287 (Bhaskara Narayanan vs.So.Murugesan).6. Mr.N.Umapathy, learned counsel appearing for therespondents 3 to 9 submitted that only after the ExecutiveMagistrate issuing notice to both parties, they have appeared.A-party has already filed a written statement and thereafter onlyon 15.03.2010, the learned Magistrate passed the order. 7. The learned counsel appearing for the respondents 3 to 9,further submitted that this being only interim order passed bythe learned Executive Magistrate, the revision against thoseorders is not maintainable. He also relied on the decision ofthe Honourable Allahabad High Court rendered in Crl.R.C.No.703 of2001 (Maan Babu Dubey vs. State of Uttar Pradesh and another).(uncertified copy computer print is produced by the counsel). https://hcservices.ecourts.gov.in/hcservices/

8. The learned Additional Public Prosecutor appearing forthe first and second respondent submitted that as there was adispute between both parties, the Inspector of Police,Jedarpalayam Police Station, Thiruchengode Taluk has initiatedaction. The learned Public Prosecutor also submitted that afteran order being passed under Section 145(1) Cr.P.C., the learnedExecutive Magistrate has got power only to attach the disputedproperty and appoint a receiver as per Section 146 Cr.P.C. 9. This Court considered the submission made by bothparties and perused the records. 10. In the impugned order, the Executive Magistrate has notmentioned under what provision he passed the order. Only in thereference, it is stated that "Jadarpalayam Police Station FIRNo.83 of 2009 dated 09.02.2010 under Section 145 Cr.P.C." Thisparticular order was passed under what provision of Cr.P.C is notspecifically stated. A reading of the order shows that pendingenquiry, the learned Executive Magistrate has passed an order of'status quo'. As per Section 145 Cr.P.C, no such interim ordercould be passed by the learned Executive Magistrate. UnderSection 145(8) Cr.P.C., the Executive Magistrate can pass aninterim order for disposal of the property, if it is subject tospeedy and natural justice. Under Section 146(1) Cr.P.C., only ifthe Executive Magistrate decides that none of the parties wasthen in such possession as is referred to in section 145, or ifhe is unable to satisfy himself as to which of them was inpossession of the disputed property, then in such possession ofthe subject of dispute, he may attach the subject of dispute andappoint a receiver. 11. Further learned Executive Magistrate has not given anyreason in his order for passing such order. The order dated15.03.2010 cannot be taken as final order under Section 145Cr.P.C., since as per Section 145(4) Cr.P.C., before passing anyfinal order, the Executive Magistrate must receive evidence fromboth the parties. Admittedly in this case, no evidence has beenlet in.12. Apart from this, the learned Executive Magistrate whileissuing notice to both parties dated 15.02.2010, directing bothparties to appear on 01.03.2010, he has not made out the groundsfor his satisfaction that there was a dispute and the dispute waslikely to cause breach of peace. 13. It also appears that already a suit also has been filedby A-party before the Civil Court and it is pending andno interim order has been passed so far. 14. It is observed by this Honourable court in the decisionreported in 1992 LW (Cri.) 579 (G.Sethuraman and two others vs.Miss.Meenakshi Ammal and two others) as follows:"5. Even at the outset I may point out that https://hcservices.ecourts.gov.in/hcservices/ in the facts and circumstances of the case, Ihave no option except to affix my seal ofapproval on the points urged by learned counselfor the petitioners. The jurisdiction conferredupon the Executive Magistrate under S.145 (1)Cr.P.C is an exceptional one and the provisionsof the section will have to be strictly followed,while taking action under it. The object of thesection is not to permit parties to bring theircivil disputes before a criminal court or tomanouevre for possession for the sake ofsubsequent civil litigation, but to clothe theMagistrate concerned with the power to maintainpeace within his local area. Therefore, a dutyis cast on the Magistrate to guard against abuseof provisions by persons using it with the objectof getting possession of the property, whileattempting to drive the other party to a civilcourt. The very jurisdiction of the Magistrateto proceed under this section arises out of hissatisfaction of a dispute likely to cause breachof peace, either on a report of a police officeror upon other information, which satisfactionmust be reflected in the order which he shouldmake in writing, stating the grounds therefore.This order, which is the sine qua non of theproceeding initiated under Section 145 Cr.P.Cmust require the parties concerned in suchdisputes to attend his Court in person or throughPleader on a specified date and time and put inwritten statement of their respective claims asrespects the factual or actual possession of theproperty of dispute. After passing of apreliminary order, a copy of the order shall beserved in the manner provided for service ofsummons by the Code of Criminal Procedure uponsuch person or persons as may be directed by thesaid Magistrate and at least one copy should beaffixed at some conspicuous place at or near thesubject of dispute. This service of the copy ofthe order is provided under S.145(1) and (3)together. It is apparent that a service ofsummons is not enough and the preliminary orderitself shall have to be served in the samepattern as service of summons.6. This Court, on more than one occasion,had held that under S.145(1) Cr.P.C., theMagistrate having jurisdiction shall make anorder in wirting that he was satisfied eitherfrom a police report or other information that adispute likely to cause breach of peace existed,and the grounds of his satisfaction should beclearly stated to indicate application of mind bythe Magistrate in passing the preliminary order.This provision of making an order in writing, https://hcservices.ecourts.gov.in/hcservices/ after initial satisfaction and stating thegrounds of his satisfaction, has been held to bemandatory.7. In the instant case, the sordid fact isthat no preliminary order had been passed at alland what all had been done is the despatch ofsubpoena to the parties concerned immediately onreceipt of the police report, requiring them toappear before the Magistrate and place materialevidence in projection of their claims, which isindicative of the fact that the ExecutiveMagistrate had not at all applied his mind inderiving the subjective satisfaction, which hewas expected to have before he proceeds furtherin the matter.8. Sub-section (4) of Section 145 Cr.P.Cenables both parties to adduce oral anddocumentary evidence and the Magistrate is boundnot only to receive all such evidence as may beproduced but he is also empowered to take suchfurther evidence, if any, as may think necessary.After the production of the oral evidence theMagistrate will have to decide the actual orfactual possession the evidence placed beforehim, on the date when the preliminary order hadbeen passed, which necessarily implies thediscussion of the evidence placed before him."15. It is held by this Honourable Court in 2004-1 L.W.(Cri.) 287 (Bhaskara Narayanan vs. So.Murugesan) as follows:"3. In the present case on going through thenotice, I do not see either of them, butsurprisingly, the learned Magistrate has conductedan enquiry and passed the impugned order. Here itwould be pertinent to refer to the decisionrendered by this Court in Kailasa Thevar andanother vs. Ramiah and 42 others (1994-1-L.W.(Cri.)201), wherein His Lordship Arunachalam, J., hasheld there must be a preliminary order underSection 145(1) Cr.P.C and that order must clearlystate the reasons and grounds on which thesatisfaction was based to show that the Magistratehad applied his mind in passing the preliminaryorder.4. Yet another ground, which ascribes to thequashing of the impugned order is the fact thatwithout there being a preliminary order, finalorder cannot be passed. This proposition of lawhas been reiterated in the decision reported inR.Thiagarajan v. K.Angamuthu (1996-2-L.W.(Crl.)615), wherein His Lordship Mr.JusticeM.Karpagavinayagam has held that the enquiry underSection 145 of the Code of Criminal Procedureshould be initiated only when the mandatory https://hcservices.ecourts.gov.in/hcservices/ provisions of Section 145(1) of the Code ofCriminal Procedure has been complied with bypassing a preliminary order, giving out all thenecessary details and reflecting the grounds ofsatisfaction arrived at by the Magistrate,otherwise the entire proceedings would be illegal."16. A perusal of the impugned order does not at allindicate with reference to any oral or documentary evidence indeciding the question of possession. Further, the preliminaryorder passed by the learned Magistrate shows that the Magistratehas not at all applied his mind in deriving the subjectivesatisfaction regarding the existence of breach of peace.17. In view of the ratio laid down by this Honourable HighCourt, the orders passed by the learned Magistrate in M.C.No.18of 2010 dated 15.02.2010 and 15.03.2010 are not sustainable andtherefore set aside. The proceedings are remitted to the file ofthe Executive Magistrate for fresh disposal in accordance withlaw from the stage of 145(1) Cr.P.C.18. Though it was contended by the learned counsel for therespondents 3 to 9 - A-party, the decision of the HonourableAllahabad High Court rendered in Crl.R.C.No.703 of 2001 dated29.04.2010, wherein it is observed that when a preliminary orderis passed under Section 145 and 146 Cr.P.C., no revision againstthe said order is maintainable, I am of the considered view thatthe order passed by the Executive Magistrate under Section 145Cr.P.C being illegal and affecting the rights of the parties, therevision is maintainable. Even if it is to be held that therevision is not maintainable, nothing prevents this Court fromexercising the jurisdiction under Section 482 Cr.P.C to quashthe said illegal orders.19. Accordingly the criminal revision petition is allowed.Consequently, M.P.Nos.1 and 2 of 2010 are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarksrTo1.The Revenue Divisional Officer-cum- Sub Divisional Magistrate,Tiruchengode.2.The Inspector of Police, Jedarpalayam Police StationTiruchengode Taluks, Namakkal District. https://hcservices.ecourts.gov.in/hcservices/

3.The Public Prosecutor, High Court, Madras+1cc to Mr.T.Murugamanikkam, Advocate Sr 42262+1cc to Mr.N.Umapathi, Advocate Sr 42559KSK(CO)km/24.6.CRL.R.C.No.400 of 2010