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2015 DIGILAW 227 (BOM)

Anil v. State of Maharashtra

2015-01-22

S.B.SHUKRE

body2015
JUDGMENT : S.B. Shukre, J. 1. Heard. Mr. A.M. Sudame, learned counsel for the applicants, Mr. A.K. Bangadkar, learned Additional Public Prosecutor for the respondent No. 1/State, who submits that an appropriate order may be passed in the matter and Mr. V.S. Kukday, learned counsel for the Respondent No. 2. Admit. 2. Heard finally by consent. 3. By this application, the applicants are challenging the order passed by Sub-Divisional Magistrate, Wani on 10.6.2013. Section 145 proceedings, being Criminal Case No. 4/2012 and order passed by the Additional Sessions Judge, Pandharkawada on 27.8.2013 in Criminal Revision No. 16/2013, thereby partly confirming the order of Sub-Divisional Magistrate, Wani. The first objection of learned counsel for the applicant is that it is the mandatory requirement of Section 145(1) Cr.P.C. that a reasoned preliminary order is passed and in this case, no such reasoned order has been passed. 4. According to the learned counsel for the respondent No. 2 there is an order passed by the Sub-Divisional Magistrate, Wani indicating that since a dispute had arisen as regards possession of land bearing Survey No. 13/3 between the parties, there was likelihood of breach of peace and since the Sub-Divisional Magistrate found it to be a serious matter, he, by mentioning of these facts in the summons dated 2.7.2012, informed the same to the applicants. According to him, there is a substantial compliance with the requirement of Section 145(1) of Cr.P.C. He also submits that if the applicants had any objection to take in the matter, they could have done it before the Sub-Divisional Magistrate and now it is too late for them to take such an objection. 5. According to him, there is a substantial compliance with the requirement of Section 145(1) of Cr.P.C. He also submits that if the applicants had any objection to take in the matter, they could have done it before the Sub-Divisional Magistrate and now it is too late for them to take such an objection. 5. Upon perusal of copy of the summons, which is part of record of this case, at page 75, I find that learned counsel for the respondent No. 2 is right when he submits that there has been a substantial compliance with the requirement of Section 145(1) of Cr.P.C. In this notice itself, Sub-Divisional Magistrate, Wani has stated that since there was a likelihood of breach of peace and the matter was serious in nature, he thought it necessary to initiate an inquiry under Section 145 of Cr.P.C. Although, more reasons could have been stated by Sub-Divisional Magistrate, Wani for reaching his satisfaction in the matter, the fact remains that something had been stated by Sub-Divisional Magistrate, Wani justifying his satisfaction in the matter, which fact together with the fact that upon receipt of such notice the applicants submitted themselves to be jurisdiction of the Sub-Divisional Magistrate, Wani and also participated in the proceedings, enable me to find that the applicants were sufficiently informed of the case alleged against them by respondent No. 2. Ultimately, requirement of Section 145(1) about passing of reasoned order is only for giving sufficient notice of the matter to the other side so that other side can prepare its defence. What has to be seen is whether the other side has been deprived of the knowledge about the case tried to be made out against it by the party initiating Section 145 proceedings. In the instant case, the applicants had not only submitted to the jurisdiction of the Sub-Divisional Magistrate, but also participated in the proceedings and presented material in its defence. These facts would show that no prejudice has been caused to them. Learned counsel for the applicants also could not point out to me from the record of the case any such prejudice having been caused to the applicants in their defence in Section 145 proceedings before the Sub-Divisional-Magistrate, Wani. Therefore, I see no merit in the said objection of learned counsel for the applicants. 6. Learned counsel for the applicants also could not point out to me from the record of the case any such prejudice having been caused to the applicants in their defence in Section 145 proceedings before the Sub-Divisional-Magistrate, Wani. Therefore, I see no merit in the said objection of learned counsel for the applicants. 6. Learned counsel for the applicants has also referred to me the case of Vishwanath Kashinath Virkar and others v. Nitinchand Keshavji Gala and others, reported in 1995(2) Mh.L.J. 664 : [1995(1) ALL MR 23], wherein it has been held by learned Single Judge of this Court that drawing of a preliminary order under Section145(1) is a sine qua non for initiating action under said Section and where such preliminary order is not drawn, the proceedings are vitiated. 7. In the instant case, unlike the said case of Vishwanath Kashinath Virkar, there is a preliminary order, although containing cryptic reasons, which order has been found by me to have caused no prejudice to the case of the applicant. These facts of the present case would distinguish themselves from the facts of said case of Vishwanath Kashinath Virkar and as such. I am of the view that said case would be of no help to the case of the applicant. 8. On merits of the case, it has been argued that there has been no application of mind on the part of the Courts below as it has been mentioned in the impugned order of Sessions Court that survey number of the land in possession of the respondent No. 2 is 38, whereas the survey number of the land in possession of the respondent No. 2 is 41. It has also been argued that the learned Additional Sessions Judge, while disposing of the criminal revision application has observed that it is an admitted fact that the respondent No. 2 is in possession of the land bearing survey No. 13/1, which is not correct. 9. Learned counsel for respondent No. 2 submits that there has been a confusion about mentioning of the survey numbers or the Gat number of the land in respective possession of the parties, but the fact remains that what has been found to be in possession of the respondent No. 2 is the land admeasuring about 6 acres. 9. Learned counsel for respondent No. 2 submits that there has been a confusion about mentioning of the survey numbers or the Gat number of the land in respective possession of the parties, but the fact remains that what has been found to be in possession of the respondent No. 2 is the land admeasuring about 6 acres. He also submits that the applicants have been found to be in possession of the land admeasuring about 4 acres. He submits that there has been a deposition of son of deceased vendor Karnu Bodhane, who had sold both the lands in question, bearing survey Nos. 13/1 and 13/3, to the parties at dispute in this case and in the saledeeds due to illiteracy of the vendor, a mistake occurred in mentioning correctly survey numbers of the land. He submits that actually the survey number of the land admeasuring 6 acres in possession of the respondent No. 2 should have been mentioned as 13/1 and survey number of the land admeasuring about 4 acres in possession of the applicant should have been mentioned as 13/3. He submits that only because such mistake occurred in both saledeeds, the ground realities do not change and which has been rightly appreciated by both the Courts below. 10. On going through the impugned orders, I find myself in agreement with the argument of learned counsel for the respondent No. 2. It appears that there has been some confusion in respect of mentioning of the Survey number or Gat number of the lands in question. Inspite of that, the evidence that has been taken into account by both the Courts below reasonably shows that the respondent No. 2 is in possession of the land, which is admeasuring 6 acres and the applicants are in possession of the land, which is admeasuring 4 acres. This evidence also shows that the land in possession of the applicant has been dug out at some places and it is marked with some pits and has signs of working of a brick kiln, which the applicant had been admittedly running. The land in possession of respondent No. 2 had no such marks and signs. These differences in characteristics of the lands in question, only strengthen the case of respondent No. 2. This aspect of the case has also been correctly appreciated by both the Courts below. The land in possession of respondent No. 2 had no such marks and signs. These differences in characteristics of the lands in question, only strengthen the case of respondent No. 2. This aspect of the case has also been correctly appreciated by both the Courts below. Besides, there have been statements of adjoining land owners all of whom are endorsing the factum of possession of respondent No. 2 in respect of disputed land. Therefore, the confusion that has arisen due to mentioning of some Survey numbers and Gat numbers has not changed the reality on the ground and it is that the respondent No. 2 has been found to be in possession of the land admeasuring about 6 acres. 11. In the circumstances, I see no reason to make any interference with the impugned order. The application deserves to be dismissed and it is dismissed accordingly. 12. At this stage, learned counsel for the applicant states that there is an interim order, directing the parties to maintain status quo as of 5th September. 2013 and, therefore, he prays that this order may be continued for a period of four weeks to enable the applicants to approach the Civil Court for seeking appropriate remedy. 13. The prayer has been strongly opposed by the learned counsel for the respondent No. 2 contending that applicants have been harassing respondent No. 2 by taking advantage of the interim order passed by this Court and any extension of interim order would only provide an excuse to trouble again the respondent No. 2 and his family members. Since the interim order was in operation for a period of almost one and half years, it's extension by some more weeks should not and would not cause any trouble or inconvenience to respondent No. 2. Therefore, interim, order dated 5th September, 2013 is extended by three weeks from the date of this order. However, it is made clear that extension of interim order dated 5th September, 2013 shall not be considered by the Civil Court below as equivalent to giving a prima facie finding about the possession of any of the parties, which will have to determined independently on merits of the case that may be instituted before a Civil Court.