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2010 DIGILAW 627 (DEL)

NIRMAL SINGH v. HARINDER SINGH GROVER

2010-05-06

VIPIN SANGHI

body2010
ORDER 1. The present petition has been filed under Section 482, Cr.P.C. and Article 227 of the Constitution of India to seek the quashing of the notice No. SDM/HK/2296 dated 7.12.2005 issued by the SDM, Hauz Khas, New Delhi under Section 145(1), Cr.P.C., requiring the petitioner to appear before him on 3.1.2006, and the subsequent proceedings in Complaint Case No. 73/SDM/HK/2005 filed by Shri Harinder Singh Grover-respondent No. 1. The petitioner has sought the aforesaid relief on various grounds, including the grounds that the petitioner was in possession of the property in question; the fact that possession was that of the petitioner was the position admitted by the respondent No.1 in other proceedings, and that the disputes in relation to the property in question viz. a farm house in village Satbari, Mehrauli, New Delhi was pending before a Civil Court, which had already passed interim orders in relation to the said property. 2. However, I do not consider it necessary to go into the factual controversies and submissions based on disputed questions of fact, as, in my view, the present petition can be disposed of on a very short preliminary point of law. 3. The impugned notice dated 7.12.2005 issued to the petitioner and three other persons, reads as follows: "Where as ....... case has been made before me and you are hereby informed through the notice. You are hereby required to appear in person or by pleader on 3.1.2006 at 3:00 p.m." 4. After the matter was heard for some time on the last date, the judicial record of the learned SDM in the case in question had been requisitioned through special messenger for today. The same has been produced and has been perused. You are hereby required to appear in person or by pleader on 3.1.2006 at 3:00 p.m." 4. After the matter was heard for some time on the last date, the judicial record of the learned SDM in the case in question had been requisitioned through special messenger for today. The same has been produced and has been perused. From the order sheet, in the proceedings before the learned SDM, it appears that the notice dated 7.12.2005 was not preceded by any earlier order of the SDM recording his satisfaction, as is required by section 145, Cr.P.C. The said provision expressly requires that whenever an Executive Magistrate is satisfied from a report of a police officer, or upon other information that a dispute likely to cause 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, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. 5. It is, therefore, imperative for the Executive Magistrate while exercising his jurisdiction under Section 145, Cr.P.C. to be firstly satisfied either on the basis of the police report or upon other information (in this case, the other information was the complaint filed by the respondents) that a dispute is likely to cause a breach of peace concerning land or water (in this case, it concerns the farm house in question situated at Village Satbari). It is also imperative that the Executive Magistrate makes an order in writing, stating the grounds of his being so satisfied with regard to the existence of a dispute which is likely to cause breach of peace. 6. The original file produced before me is duly numbered. The order sheets begin from page No.3. The numbering has been done only on the front side of the pages. The first page is the index, which is given page number 1. There is no recording of any order on the back side of page No. 1. The first order passed by the learned SDM is dated 3.1.2006 (which was the date on which the notice issued by him on 7.12.2005, was returnable). The first page is the index, which is given page number 1. There is no recording of any order on the back side of page No. 1. The first order passed by the learned SDM is dated 3.1.2006 (which was the date on which the notice issued by him on 7.12.2005, was returnable). This order is recorded at the top of page No.3 of the original file. It is, therefore, amply clear that no order was passed on the file by the learned SDM upon receipt of the complaint filed by respondent No. 1 under Section 145, CLP.C., recording his satisfaction that a dispute exists concerning the farmhouse in question falling within his jurisdiction, between the complainant and the accused, and that the said dispute is likely to cause breach of peace. He has also not recorded any grounds for his satisfaction as aforesaid, if any. Such an order should have proceeded the issuance of the notice dated 7.12.2005. However, it is not there on the file. The requirement of the law, as aforesaid, cannot be said to be an empty formality and in my view, its non-compliance is fatal to the exercise of his jurisdiction by the Executive Magistrate. The said requirement is a check provided by the law to the exercise of his powers and discretion by the Executive Magistrate under section 145, Cr.P.C. 7. The Supreme Court in Mathuralal v. Bhanwarlal and Anr., (1979) 4 SCC 665 , has examined Sections 145 and 146, Cr.P.C. and has, inter alia, held as follows: "Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the Criminal Courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146." 8. A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146." 8. This Court in Jagdish Gandhi and Anr. v. State and Anr., 153 (2008) DLT 64, has also followed the aforesaid decision of the Supreme Court, while taking note of various other decisions of other Courts. The relevant extract from the aforesaid decision from reads as follows: "12. In this case, it will be seen from the facts stated above as to whether the provision of Section 145 of Cr.P.C has been properly complied with or not. The order under Section 145(1), Cr.P.C. was passed by the SDM on 5.5.2004 In order to take preventive action under Section 145, Cr.P.C., two essential conditions must be satisfied (i) there must be dispute relating to land or other objects mentioned in Sub-section (1) and (ii) the dispute is likely to cause a breach of peace. If there is no dispute there is no obligation on the part of the SDM to pass orders under Section 145, Cr.P.C. The SDM exercising jurisdiction under this section must be satisfied about these two conditions either from a police report or from any other information, which might include an application, by the dispossessed person. The term satisfied is of considerable expansiveness, which means free from anxiety, doubt, perplexity, or uncertainty. The satisfaction of the Magistrate must be clear and unambiguous. Nothing short of that can give him jurisdiction under Section 145, Cr.P.C. So is held in Laxman v. Bahim Khan, 1976 Crl.L.J. 1492 and Lala Ram v. R.R. Bainswal 1981 Crl.L.J. 981 (P and H High Court). 14. Sub-section (1) of Section 145, Cr.P.C. requires that while making the impugned order in writing the Magistrate shall state the grounds of his being so satisfied. This impugned order is considered so basic that a failure to draw it up can vitiate all the subsequent proceedings. Similar view is taken in Mathuralalv. Bhamuarlal, (1979) 4 SCC 665 [see also Gabriol Thankayyan v. Narayanan Nadar, 1977- Cri. L.J. 1870 (Kerara High Court) and Banncy v. Ramcsh Chandra, 1983 Cri. L.J. 18 (Allhabad HC.)]." 9. This impugned order is considered so basic that a failure to draw it up can vitiate all the subsequent proceedings. Similar view is taken in Mathuralalv. Bhamuarlal, (1979) 4 SCC 665 [see also Gabriol Thankayyan v. Narayanan Nadar, 1977- Cri. L.J. 1870 (Kerara High Court) and Banncy v. Ramcsh Chandra, 1983 Cri. L.J. 18 (Allhabad HC.)]." 9. Learned Senior Counsel for the respondent submits that the failure of the SDM to record his satisfaction, as aforesaid, prior to issuance of the notice dated 17.12.2005 was a .mere irregularity, and that it does not vitiate the exercise of his jurisdiction by the learned SDM in this case. She submits that the SDM acted on the basis of relevant material placed by the respondent along with the complaint. She submits that the fact that the SDM had issued notice under Section 145 itself leads to the assumption that he was satisfied with regard to the existence of a dispute in relation to an immovable property and that the dispute was likely to cause breach of peace. She also places reliance on two decisions, one a Full Bench decision of the Allahabad High Court, Kapoor Chand and Anr. v. Suraj Prasad, AIR 1933 All 264 and another decision reported as Mt. Ram Piari and Ors. v. Dankua, 50 Cr.L.J (1949) 655. 10. She submits that in Kapoor Chand (supra), it has been held that non compliance with strict letter of law in formulating order under Section 145(1) does not prevent Magistrate from exercising jurisdiction to proceed with the case and that the jurisdiction of the Magistrate to take action under Section 145, Cr.P.C. arises from the fact that he has received certain information and that he is satisfied as to the truth of the information. It has further been held that the jurisdiction of the Magistrate does not depend on how he proceeds. If he has jurisdiction, he is not deprived of jurisdiction merely because his procedure is erroneous or defective. 11. It has further been held that the jurisdiction of the Magistrate does not depend on how he proceeds. If he has jurisdiction, he is not deprived of jurisdiction merely because his procedure is erroneous or defective. 11. However, in view of the aforesaid decision of the Supreme Court in Mathuralal (supra) and also the decision of a coordinate bench of this Court in Jagdish Gandhi (supra), which in turn refers to various other decisions of Punjab and Haryana High Court, Kerala High Court as well as Allahabad High Court, the decisions relied upon by the learned Senior Counsel for the respondent do not persuade me to take a different view. 12. Learned Senior Counsel for the respondent has then argued that the matter should be remanded back to the SDM for adjudication of the matter by him. 13. I am not inclined to agree with the submissions either. The present petition has been filed to challenge the issuance of notice and subsequent proceedings which are still pending before the learned SDM. It is not that the SDM has passed a final order, and this Court is not functioning as an appellate Court. There is no question of the matter being remanded back to the SDM, as the assumption of jurisdiction by him itself was void. The proceedings initiated by the SDM were without jurisdiction. Only upon recording his satisfaction as required under Section 145, Cr.P.C., he would have got invested with the jurisdiction to act in the matter. 14. For the aforesaid reasons, I allow this petition and quash the proceedings pending before the learned SDM, Hauz Khas in Case No. 73/ SDM/HK/2005 under Section 145, Cr.P.C. 15. The original record requisitioned from the office of SDM be sent back. 16. The parties are left to bear their respective costs. Petition allowed.