Research › Browse › Judgment

Karnataka High Court · body

1979 DIGILAW 29 (KAR)

MAJOR MIRZA v. STATE

1979-01-30

M.S.NESARGI

body1979
( 1 ) THIS petition is directed against the order dated 31-7-1978 pasped, by the Sub-Divisional Magistrate, Bangalore Sub-Division, Bangalore, in case No. MAG. SR. 38,77-78 (a proceeding ulnder S. 145 of the. Code of criminal Procedure) dropping the proceedings initiated by him under S. 145 cr. P. C. (to be hereinafter referred to as the Code.) ( 2 ) THE facts as disclosed in the, records submitted by the Sub-Divisional magistrate to this Court, are that the Sub-Inspector 61 Police, Shoolay policy station, Bangalore, registered a case in C. C. No 818 of 1977 on 7-9-1977 and sent F. I. R. to the Sub-Divisional Magistrate and that the sworn statement of the; Sub-Inspector of Police of Shoolay police, station was recorded by the Sub-Divisional Magistrate on 14-9-1977. Thereafter the Sub-Divisional Magistrate issued, a preliminary order under S. 145 (1) of the Code calling upon the petitioner and respondent-2 in the following terms:"to produce all the documents and any other materials in support of their claim; Further they are also directed to appeal before this court on 26-9-1977 at 2. 30 P. M. to show cause, failing which ex- parte orders will bet issued. "accordingly both of them appeared and in their own time filed their written statements. Thereafter the Sub-Divisional Magistrate has produced the impugned order. ( 3 ) SRI V. K. Gqvindarajulu, learned, Advocate appearing on, behalf of the petitioner, contended that then Sub-Divisional Magistrate has, acted beyond his powers and without jurisdiction inasmuch, as he could not have proceeded to drop the, proceedings when no such power is vested in him under s. 145 of the Code and that too without giving an opportunity to the parties to produce evidence in support of their respective/ claims. ( 4 ) SRI T. J. Chouta, learned Government Pleader, submitted that the magistrate has got such a power in view of the provisions contained in S. 145 (5) of the Code. S. 145 (5) of the Code reads as follows. "nothing in this section shall preclude any party so, required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such cape the Magis- trate shall cancel his said order, and all further proceedings there on shall be stayed, but, subject to such cancellation, the order of the magistrate under sub-sec. (1) shall be final. (1) shall be final. " ( 5 ) PLAIN reading of this section shows tha,t it relates to the order passed by the Sub-Divisional Magistrate under Sub-sec. (1) of S. 145 of the Code, that order is commonly known as 'preliminary order' and by virture of such an order, a Proceeding under S. 145 of the Code/ is initiated. It is also plain that to attract Sub-section (5) of S. 145 of the Code, any person interested or any Party interested in the dispute, is re/quired to satisfy the Sub- divisional Magistrate that no such dispute viz. , referred to in the preliminary order, either exists or had existed. If the Sub-Divisional magistrate is so satisfied, then he gets the power to cancel the preliminary order passed by him. The effect of such cancellation of the preliminary order would lead to staying all further proceedings, but subject to such cancellation, the preliminary order is made final in law. ( 6 ) IT is by now seen that neither the petitioner no respondent-2 nor anyone claiming to be interested in the dispute in regard to the immovable property in question had ever attempted before the, Sub-Divisional magistrate to satisfy him that no dispute as mentioned in, the preliminary order passed by the Sub-Divisional Magistrate, did exist or had existed. On. the other hand, the, petitioner and respondent-2 had put forward their rival claims contending that each one of them was in peaceful possession of the room in question. In that view of the matter the Sub-Divisional Magistrate could not have applied the provisions of Sub-section (5) of S. 145 of the Code. Moreover, he, could not have proceeded to drop the whole, proceedings, when such a power does not appear to be vested in him on the plain reading of S. 145 of the Code. ( 7 ) THE aforementioned discussion now takes me to the question whether the Sub-Divisional Magistrate had acted within his powers in issuing the preliminary order. Though neither the petitioner nor respondent-2 has raised this question, this Court, in exercise of its revisional povers, can go in to the question as it affects the jurisdiction of the Sub-Divisional Magistrate to hold an enquiry under S. 145 of the Code. Though neither the petitioner nor respondent-2 has raised this question, this Court, in exercise of its revisional povers, can go in to the question as it affects the jurisdiction of the Sub-Divisional Magistrate to hold an enquiry under S. 145 of the Code. It is by now well settled that unless a legally valid preliminary order under S. 145 (1) of the, Code is passed by a Sub-Divisional Magistrate, such Sub-Divisional Magistrate will not have; jurisdiction to hold an enquiry under S. 145 of the Code, and give his decision, as to which of the parties concerned was in possession of the subject-matter of dispute. ( 8 ) THE preliminary order passed by the Sub-Divisional Magistrate is dated 14-9-1977. It consists of two preliminary paragraphs wherein facts pertaining to the report of the Sub-Inspector of Police, Shoolay police station, in regard to the dispute about the possession of the premises in question and recording of the sworn statement of the Sub-Inspector of police, are narrated. The last two paragraphs appearing below the heading 'preliminary Orders', read as follows: "perused the F. I. R. and the sworn statement filed by the Sub- inspector of Police, Shoolay police station and satisfied that there is a dispute in respect of the room described above and if the said dispute is continued, beyond any further that may lead to breach of peace and danger to lives of the respondents. ( 9 ) IN these circumstances, both the respondents are hereby called upon to show cause as to why they should not be restrained from entering the said room until further orders. They are also directed to produce all the documents and any other materials in support of their claim; Further, they are also directed to appear before this Court on 26-9-1977 at 2-30 P. M. to show cause; failing which ex parte orders will be issued. " ( 10 ) THE Sub-Divisional Magistrate has expressed in unequivocal terms that he was satisfied that there was a dispute in respect of the room described and that if the said dispute continued, it may lead to breach of peace and danger to the lives of the respondents. He has not stated anywhere any grounds for his being so satisfied. Reading of Sub-sec. He has not stated anywhere any grounds for his being so satisfied. Reading of Sub-sec. (1) of S. 145 of the code makes it abundantly clear that whenever a Sub-Divisional magistrate is so satisfied, he is mandatorily required to state the grounds of his being so satisfied. That has not been done. ( 11 ) IN the last paragraph cf the preliminary order, the Sub-Divisional magistrate has called upon the petitioner and respondent-2 to show cause why they should not be restrained from entering the said room until further orders. S. 145 of the Code does not vest a Sub-Divisional Magistrate with powers to call upon parties to show cause why they should not be restrained from entering into the subject matter of dispute. If at all such a power can be said to be, vested in a Sub-Divisional Magistrate, it can only be by virtue of proviso (b) to S. 146 (2) of the Code. Reading of Section 146 of the Code makes it manifest that it does not operate at the, stage of issuing a preliminary order. To exercise the powers vested in him under section 146 of the Code, a Sub-Divisional Magistrate has to take into consideration few more, facts and circumstances as required by the. said, provision. The Sub-Divisional Magistrate has not acted accordingly. ( 12 ) THE foregoing reasons dealing with the act of the Sub-Divisional magistrate in issuing the preliminary order under Section 145 (1) of the code, show that the Sub-Divisioal Magistrate has acted without powers, quite illegally, in issuing the preliminary order. Therefore, he had no jurisdiction to hold an enquiry and pass any order in the proceeding in question. In then resuli the whole of the proceeding has to be quashed. It is hereby ordered accordingly. --- *** --- .