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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. BALASUBRAMANIAN
Dr. J.A. Thathruvasamy
Versus
Raja and others
Crl. R.C. No. 332 of 1994
Decided On : 24-02-1998
Section 145 of the Code of Criminal Procedure, 1898 - Dispute likely to cause breach of peace - Preliminary order - Satisfaction of Magistrate - Grounds of satisfaction - Transfer of property by one of the parties to the proceedings in favour of a third party - Effect - Pendency of civil proceedings - Effect.
Fact of the Case:
A dispute arose between the counter-petitioner A party and counter-petitioner B party over a vacant land. The counter-petitioner A party filed a petition before the Executive Magistrate under Section 145 of the Code of Criminal Procedure seeking his intervention. The Executive Magistrate passed an order dated 4. 1986 dismissing the petition. The counter-petitioner A party challenged that order before the High Court. A learned single judge of the High Court set aside the order dated 4. 1986 and remitted the matter to the Executive Magistrate for fresh orders. The Executive Magistrate passed a preliminary order under Section 145(1) of the Code on 10. 1988. The counter-petitioner B party challenged the preliminary order before the Court of Session. The Court of Session allowed the revision and set aside the preliminary order. The counter-petitioner A party filed a revision petition before the High Court.
Finding of the Court:
The High Court held that the Executive Magistrate had not committed any error in adopting the procedure of calling both the parties to participate in the proceedings before the preliminary order under Section 145(1) of the Code. The High Court also held that the dispossession took place on 12. 1985 and the preliminary order was passed on 10. 1988, and therefore, the Magistrate was justified in law in treating the counter-petitioner A party was in possession on the date of the preliminary order. The High Court further held that the preliminary order passed by the Executive Magistrate under Section 145(1) of the Code was bad on account of the Executive Magistrate having failed to state the grounds of his satisfaction in the preliminary order itself. The High Court also held that the transfer of the property by one of the parties to the proceedings to a third party would not disable the Magistrate from proceeding further with the proceedings initiated before him under Section 145 of the Code of Criminal Procedure. The High Court also held that the filing of the civil suit in the case on hand, the nature of which and the order passed thereon, would not be a bar to continue the proceedings initiated under Section 145 of the Code of Criminal Procedure to its logical end.
Issues: 1. Whether the Executive Magistrate had committed any error in adopting the procedure of calling both the parties to participate in the proceedings before the preliminary order under Section 145(1) of the Code? 2. Whether the dispossession took place on 12. 1985 and the preliminary order was passed on 10. 1988, and therefore, the Magistrate was justified in law in treating the counter-petitioner A party was in possession on the date of the preliminary order? 3. Whether the preliminary order passed by the Executive Magistrate under Section 145(1) of the Code was bad on account of the Executive Magistrate having failed to state the grounds of his satisfaction in the preliminary order itself? 4. Whether the transfer of the property by one of the parties to the proceedings to a third party would disable the Magistrate from proceeding further with the proceedings initiated before him under Section 145 of the Code of Criminal Procedure? 5. Whether the filing of the civil suit in the case on hand, the nature of which and the order passed thereon, would be a bar to continue the proceedings initiated under Section 145 of the Code of Criminal Procedure to its logical end?
Ratio Decidendi: 1. The Magistrate commits no harm or illegality, by making any further enquiry as he thinks fit before drawing the proceedings under Section 145(1) of the Code. 2. Dispossession two months prior to the receipt of information would also be taken into account to treat the person so dispossessed as a person in possession of the preliminary order. 3. Every preliminary order must satisfy the following tests: (a) The Magistrate must be satisfied on such police report or other information that the dispute was likely to cause breach of peace; and (b) on the satisfaction of the Magistrate, he must make an order in writing stating the grounds for his satisfaction in the order he intends making under Section 145(1) of the Code. 4. The transfer of the property by one of the parties to the proceedings to a third party would not disable the Magistrate from proceeding further with the proceedings initiated before him under Section 145 of the Code of Criminal Procedure. 5. The filing of the civil suit in the case on hand, the nature of which and the order passed thereon, would not be a bar to continue the proceedings initiated under Section 145 of the Code of Criminal Procedure to its logical end.
Final Decision: The High Court dismissed the revision petition.
1. The revision petitioner is the counter petitioner A party and respondents 1 to 3 are the counter petitioners B Party in M.C. No. 79 of 1987 on the file of the Sub Divisional Magistrate, Pondicherry and the respondent and petitioners respectively in Criminal Revision Petition No. 14 of 1993 on the file of the Principal Sessions Judge, Pondicherry. The order dated 13. 1994 in criminal revision petition No. 14 of 1993, which set aside the final order dated 19. 1993 passed under Section 145(6) of the Code of Criminal Procedure in M.C. No. 79 of 1987 in favour of the counter-petitioner A party, is challenged in this revision before this Court. In this order, the parties to the revision petition will hereafter be referred to as the counter petitioner A party and counter petitioner B party for convenience sake.
2. A few facts have to be necessarily stated in this order so as to understand the points in controversy and they are as follows: A vacant land measuring 1 acre 95 centiares within four well defined boundaries in R.S. No. 105/10 with an incompletely constructed superstructure is the subject matter of the proceedings under Section 145 of the Code of Criminal Procedure before the Executive Magistrate and it would be hereinafter referred to as the property. It appears that the counter petitioner first B Party was the owner of the said property. The said property was agreed to be sold by the said owner in favour of the counter petitioner A Partys wife under an agreement of sale dated 18. 1984 and the owner had agreed to complete the construction till the first floor of the property. As the construction activities were going slow, Counter Petitioner A Partys wife was requested to occupy the property and thus she was put in possession of the property on 10. 1984 and the house warming ceremony was also performed. There was an incident on 6. 1985 when the counter petitioner B Party alongwith their supporters were stated to have made attempts to interfere with the counter petitioner A Partys possession of the property. This has resulted the counter petitioner A party in filing a complaint with the Police Station having jurisdiction over the matter. However on that complaint, no legal action was taken, but the parties seem to have been enquired by the police which resulted in the cessation of the illegal activities. According to the Counter Petitioner A Party on 12. 1985 when he came home from the Church, he found some strangers in the property and ultimately to his surprise and shock the counter-petitioner B party with their supporters stormed into the property and the resistance put forward on behalf of the counter petitioner A party was of no use. Thus the counter petitioner A party was dispossessed by the counter petitioner B Party on 12. 1985. The other details relating to the incident on 6. 1985 and 12. 1985 need not be stated. However the fact put forward by the counter petitioner A Party is that he was dispossessed on 12. 1985 from the property.
3. On this dispossession counter petitioner A party filed a petition before the Executive Magistrate (Sub Collector). Pondicherry under Section 145 of the Code of Criminal Procedure seeking his intervention. On the same day, it appears from the records, the Executive Magistrate forwarded the petition to the Tahsildar having jurisdiction for enquiry and report immediately. The records further show that the Tahsildar sent his report dated 1. 1986. On the basis of the Tahsildars report, the Executive Magistrate passed on order dated 4. 1986 on the complaint of the counter petitioner A party which is to the following effect:-
"Returned.
The report of the Tahsildar, Taluk Office, Pondicherry dated 1. 1986 reveals that there is no likelihood of breach of peace with regard to the possession of the building. Hence returned. Counter Petitioner A Party challenged that order before this Court in Crl.M.P. No. 6381 of 1986. A learned single judge of this Court in the above mentioned
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