An Executive Magistrate cannot inspect the spot and hold a local enquiry himself in proceedings under Section 145 of the Code. He must refer the matter to the District Magistrate or Sub-Divisional Magistrate.

ORDER

P.K. Jain, J. - This petition has been filed under Section 482 of the Code of Criminal procedure (hereinafter referred to as the Code) for quashing the proceedings initiated under Section 145 of the Code and pending in the Court of Executive Magistrate, Amritsar.

2. The facts necessary for the disposal of this petition are that Amrik Singh, respondent No. 2 herein, addressed a complaint dated 19.8.1994 (Annexure P-1) to the Station House Officer, Police Station, Chheharta Sahib, alleging therein that on 18.8.1994 at about 11.00 a.m. he was detained at the said Police Station, and his absence, Mota Singh along with others, with the help of police demolished the chhabeel (a small place for storing water). It has been further stated that all those persons were drunk and were abusing his family members and that Mota Singh had threatened him with dire consequences. He sought protection from the said S.H.O.

3. On the same day, Amrik Singh moved a complaint (Annexure P.2) before the Executive Magistrate alleging therein that he was having the said small water tank in the name of Baba Kharak Singh for the last 7 yeas and S. Mota Singh Thekedar had demolished the same and illegally occupied the same with the help of the police. It was further alleged that Mota Singh had threatened him with dire consequences. He levelled allegations of illegal detention and harassment on the part of the police. He also alleged that the situation can deteriorate further resulting in murders.

4. On the said complaint (Annexure P.2), the Executive magistrate made a note to be discussed with D.C.. Thereafter the said Executive Magistrate inspected the spot in dispute on 22.8.1994, made enquiries on the spot and recorded his report dated 22.8.1994 (Annexure P.3) stating therein that due to the said illegal action of Mota Singh with the help of others, there was a lot of resentment in the village and an apprehension of breach of peace. Consequently, proceedings under Section 145 of the Code have been initiated.

5. It has been stated in the present petition that the proceedings have been initiated by the Executive Magistrate after inspecting the spot and preparing a report; that the entire dispute related to a spot from where drinking water was being made available to the people and the cattle, that the petitioner had thereafter filed a suit on 31.3.1994 against respondent No. 2 for a decree of permanent injunction, thereby restraining him from interfering in the peaceful possession of the petitioner over Khasra N. 113-Min wherein on application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, an ad interim injunction had been granted in favour of the petitioner thereby holding that the petitioner is in possession of the said land, and as such the proceedings under Section 145 of the Code cannot proceed.

6. On a notice, respondent No. 2 has reiterated the averments made by him in his two complaints (Annexures P.1 and P.2) and has pleaded that the civil suit relates to Khasra No. 1133-Min whereas the dispute in the proceedings under Section 145 of the Code relates to Khasra No. 1130 and 1131. He has supported action of the Executive Magistrate.

7. After hearing the learned counsel for the parties at length, I am of the view that the order dated 22.8.1994 (Annexure P.3), passed by the Executive Magistrate and initiation of proceedings under Section 145 of the Code based on the said order are liable to be quashed being in violation of the express provisions of Section 148 of the Code.

8. This section, so far as it is relevant for our purposes, reads as under :-

"148. Local inquiry :- (1) Whenever a local inquiry is necessary for the purposes of Section 145, Section 146 or Section 147, a District Magistrate or Sub-Divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the