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1989 DIGILAW 428 (MAD)

R. G. Mathi v. Balakrishna Reddiar

1989-08-31

JANARTHANAM

body1989
Judgment : Both the Criminal Miscellaneous Petition and the Criminal Revision are directed against the order of the Executive Second Class Taluk Magistrate-Cum-Tahsildar, Thittakudi, South Arcot District in C.M.P.No.39 of 1988 and the parties in both the Crl.M.P. and the Criminal Revision Case are the same. 2. One KG. Mathi (Petitioner in both the Crl.M.P. and C.R.C.) as well as Balakrishna Reddiar, i.e., 1st Respondent in the Crl.M.P. and the Criminal Revision Case instituted proceedings before the Executive II Class Magistrate cum Tahsildar, Thittakudi under Sec.145, Crl.P.C. in respect of the property situated in S.No.64/1A-2BI measuring about 225 Sq.feet in Thittakudi village, situate on the South of Thozhudhur, Vridhachalam Main Road bearing Door No.176. Both the petitions have been taken on file and disposed of by the Executive Magistrate in C.M.P.No.39 of 1988. On 16.11.1988 on a perusal of the materials placed before him, the Magistrate passed an under Sec.145, Crl.P.C. preventing both the parties herein from entering into the subject matter of dispute between the same parties. On 22.5.1989 the Magistrate reopened the matter and issued notice to the parties concerned directing them to appear before him on 29.5.1989 and make their respective claims regarding the subject matter of dispute. After perusing the materials placed before him, the Magistrate again passed an order on 22.6.1989 finding possession in favour of 1st respondent excepting the portion situated on the west of Door No.176 to the extent of 0.00.5 hectare and preventing both the parties from entering into possession of the aforesaid 0.00.5 hectare till the competent civil court decides as to who will be entitled to the possession of the same. Regarding the same subject matter of dispute R.G.Mathi had also filed O.S.No.69 of 1988 on the file of the Sub Court, Vridhachalam for the relief of declaration and injunction impleading the present Respondents 1 and 2 there as defendants. Besides he also filed I.A.No.335 of 1988 praying for interim injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the subject matter of dispute. It appears that the defendants had entered appearance and filed written statements and no interim order appears to have been passed so far. 3. Learned counsel for the petitioner in both the petitions makes the following submissions for consideration. It appears that the defendants had entered appearance and filed written statements and no interim order appears to have been passed so far. 3. Learned counsel for the petitioner in both the petitions makes the following submissions for consideration. (i) The Executive Magistrate is without any jurisdiction to pass a subsequent order dated 23.6.1989 by reopening the matter when especially there is an earlier order dated 16.11.1988. (ii) There is no power for the Magistrate to pass an order under Sec.145, Crl.P.C. to prevent both the parties from entering into the subject matter of the dispute. (iii) The non-observance of the mandatory procedure as contemplated in the salient provisions of Sec.145, Crl.P.C. vitiates the entirety of the proceedings of the Executive Magistrate. 4. There is no manner of dispute whatever that the Executive Magistrate initially passed an order on 16.12.1988 in respect of the subject matter of dispute between the parties preventing both the parties from entering into possession until the issue is decided by a competent civil court. It is also not in dispute that subsequently, he reopened the matter by issuance of notice to the parties concerned and again passed an order on 23.6.1989. The procedure adopted by the Magistrate appears to be clearly illegal and is not warranted at all by the provisions of Crl.P.C. 5. A useful reference may be made at this juncture, to the decision reported in Rasi Gounder v. Muthu Gounder and others, (1964)1 M.L.J. 440, wherein learned judge of this Court observed as follows: “The question now is whether, in the circumstances, it is open to the learned Magistrate to take proceedings under Sec.145, Crl.P.C. or whether he should have taken steps to abate interference by the respondents.” It seems to me that having already passed order under Sec.145, Crl.P.C., it is not open to the Magistrate to again take proceedings under the said Section on grounds such as those alleged by the petitioner“particularly when consequent on the order passed by him a suit has been filed in Civil Court to establish the rights of the respondents. The remedy contemplated in such circumstances is not one under Sec.145, Crl.P.C., but under, relevant provisions of the Indian Indian Penal Code, as for instance Sec.198, I.P.C. The order passed by the learned Magistrate directing issue of notice to the respondents under Sec.145, Crl.P.C., in the circumstances, is uncalled for and has to be set aside. This petition is therefore allowed and the proceedings taken by the learned Magistrate under Sec.145, Crl.P.C. is quashed.” From the above observations of the learned Judge it is crystal clear that the action of the Magistrate in reopening the matter is quite uncalled for and the same therefore deserves to be set aside. 6. The next bone of contention added by learned counsel for the petitioner is that the Executive Magistrate has no power at all under Sec.145 of the Crl.P.C. to prevent both the parties from entering into possession. From a bare perusal of Sec.145, Crl.P.C., it is patently clear that it is not legally permissible for the Magistrate to pass an order under Sec.145, Crl.P.C. preventing both the parties from entering into possession. Learned counsel for the other side is unable to repel this submission by citing any authorities on this point. Therefore the petitioners contention in this respect deserves acceptance. 7. The other contention revolves on the question as to the non-observance of the mandatory procedure as contemplated in Sec.145, Crl.P.C. It is incumbent upon a Magistrate to pass a preliminary orderunderSec.145(1), Crl.P.C. Before passing a preliminary order, the Magistrate has to be 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 the subject matter of dispute which falls within his jurisdiction. Then only he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to appear before him on a specified date and time and to put in written statements of their respective claims as respects the fact of actual possession of the subject matter of dispute. The order that is so passed has to be duly served in the manner contemplated under Sub Clause 3 of the Section. The order that is so passed has to be duly served in the manner contemplated under Sub Clause 3 of the Section. Thereafter under Clause 4 of the same section a mandate is cast upon the Magistrate to receive all such evidence as may be produced by the parties adopting the summons procedure according to Sec.274, Crl.P.C. Neither the order dated 16.11.1988 nor the order dated 23.6.1989 does explicitly reveal the adoption of the procedure as contemplated by the sanguine provisions of Clauses 1, 2, 3 and 4 of Sec.145, Crl.P.C. What all the Executive Magistrate did on both occasions was that he has straightway passed a final order without respect to adopt the procedure as referred to above and what is worse is he passed two final orders and the latter one by revoking his earlier order which in the circumstances of the case cannot at all be called an order other than a final order. As such it is manifestly clear that the Executive Magistrate flagrantly violated the mandatory provisions of Sec.145, Crl.P.C. as rightly contended by the learned counsel for the petitioners. 8. In view of what has been stated above it goes without saying that both the orders passed by the Executive Magistrate cannot at all be allowed to stand and the same decrees to be set aside. 9. In theresult, both the Criminal Miscellaneous Petition and the Criminal Revision Case are allowed and the order passed by the Magistrate on two occasions in C.M.P.No.39 of 1988 are set aside. I may, however, observe here that since the subject matter of the dispute between the parties is pending before the competent Civil Court, namely, Sub-Court, Vridhachalam in O.S.No.69 of 1988 it is very well open to them to approach that court for any urgent relief if the situation so warrants and if they are advised to do so.