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2007 Supreme(Del) 1745
High Court Of Delhi
SHIV NARAYAN DHINGRA
SHASHI DEVI SHARMA - Appellant
Versus
SANJAY GOEL - Respondents
Crl. M. C 2241 Of 2004
Decided On : 08/27/2007
S.U.ABBAS
The main legal point established is that an Executive Magistrate must be personally satisfied of a dispute likely to cause a breach of peace before passing an order under Section 145 Cr. P. C.
Headnote:
Jurisdiction - Quashing of Order - Section 145 Cr. P. C. - Executive Magistrate's Satisfaction
Fact of the Case:
The respondent filed an application/complaint to the SDM, seeking initiation of proceedings under Section 145 Cr. P. C. due to apprehension of breach of peace over property possession.
Finding of the Court:
The court found that the order passed by the SDM was illegal and beyond jurisdiction as the SDM could only pass an order under Section 145 Cr. P. C. after being personally satisfied that a dispute likely to cause a breach of peace exists.
Issues: The issue was whether the order passed by the SDM was within jurisdiction under Section 145 Cr. P. C.
Ratio Decidendi: The court interpreted Section 145 (1) and (3) of Cr. P. C., emphasizing that the Executive Magistrate must be personally satisfied, based on a report of a police officer or other information, that a dispute likely to cause a breach of peace exists before passing an order.
Final Decision: The court set aside the order of the SDM, stating that it was beyond jurisdiction.
( 2 ) THE brief facts relevant for the purpose of deciding this petition are that the respondent no. 1 made an application / complaint to the SDM wherein he stated that proceedings under Section 145 Cr. P. C. should be initiated as there was apprehension of breach of peace over the possession of property no. C-18/238, Gurunanak Pura, near Radhu Place, Delhi. On receipt of this application the learned SDM passed following order: "received complaint from Shri Sanjay Goyal. Issue notice for 29. 08. 2004"
( 3 ) IT is submitted by the petitioners that the order passed by learned metropolitan Magistrate was illegal and beyond jurisdiction. Sub Divisional magistrate could have passed an order only in terms of Section 145 Cr. P. C. after specifying himself that there was apprehension of breach of peace.
( 4 ) SECTION 145 (1) and (3) of Cr. P. C. read as under: 145 (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, actual possession of the subject of dispute. 145 (3) A copy of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may conspicuous place at or near the subject of dispute.
( 5 ) A perusal of above provisions of Cr. P. C. shows that Executive magistrate has to be satisfied either from the report of a police officer or upon other information that a dispute over property was likely to cause breach of peace. This satisfaction has to be the personal satisfaction of Executive magistrate after application of mind and considering material and he has to pass an order in writing stating the grounds for his satisfaction. After he is satisfied then only he can ask the parties to attend his Court in person or by pleader. SDM is not a Court of civil jurisdiction or a Court of criminal jurisdiction that on receipt of complaint, he can issue summons to any person. The order of SDM dated 19th August, 2004 is clearly beyond jurisdiction and is hereby set aside. The Petition is allowed.
