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Karnataka High Court · body

2019 DIGILAW 126 (KAR)

Chandrasekhar Shivacharya v. State

2019-01-09

P.G.M.PATIL

body2019
ORDER : P.G.M. Patil, J. - Heard learned counsel for the petitioner and the learned High Court Government Pleader. 2. It is the case of the petitioner that on the basis of a complaint lodged by one Ravikumar, Police Sub-Inspector, Bhimalkheda, PS. the FIR in Crime No. 0116/2017 came to be registered against the petitioner and another. It is stated in the complaint that there is one Matha called "Hira Matha" in Bhimalkheda village, Basavakalyan taluk and the Matha is having 40 to 50 acres of land. One Sri. Gurupad Shivacharya (Kashinath Swamy) is the chief Peethadipathi of the said Matha. At about 15 years back, one Sri. Chandrasekhara Shivacharya was appointed as the successor of the above said Hira Matha. Because of the dispute between Sri. Gurupad Shivacharya and Chandrasekhara Shivacharya, the present petitioner Sri. Chandrasekhara Shivacharya went out of the Mutt and started residing at Veerbhadreshwar Temple coming under the said Mutt. Since then the present petitioner is looking after the affairs of Sri. Veerbhadreshwar Temple and he also constituted the Committee in respect of Veerbhadreshwar Temple. 3. When this being the facts, about nine months ago, the present petitioner left the Bhimalkheda village and went to Godachi village of Ramdurg Taluk of Belagavi District and settled there as successor of the Godachi Matha. Since then, the petitioner has assumed successorship of one more Matha at his hometown without informing Kadaganchi Matha, therefore, the deceased Shri. Gurupad Shivacharya (Kashinath Swamy) has expelled the petitioner from being Peethadipathi of the Bhimalkheda Matha nine months ago. There is a civil suit pending before Humnabad Civil Court in respect of successor ship of Hiramatha and also property dispute between Rajshekhar Swamiji Gorta and the present petitioner there is a difference of opinion among the villagers for removing the petitioner from being the Peethadipathi and in appointing Rajshekhar Swamiji Gorta as a new successor to Hira Matha. Therefore they divided in two groups. On 02.10.2017 Sri. Gurupad Shivacharya (Kashinath Swamy) breathed his last. 4. There is a civil dispute pending before the Humnabad Civil Court between the present petitioner and Rajshekhar Swamiji Gorta in respect of Peethadipathi ship and the property attached to the Matha. Therefore they divided in two groups. On 02.10.2017 Sri. Gurupad Shivacharya (Kashinath Swamy) breathed his last. 4. There is a civil dispute pending before the Humnabad Civil Court between the present petitioner and Rajshekhar Swamiji Gorta in respect of Peethadipathi ship and the property attached to the Matha. Since there are two groups in the village in respect of the appointment of Peethadipathi and property attached to Matha there is every chance of breach of peace and law and order and there is also chance of mis-utilizing the movable and immovable properties including the bank deposits of the Matha property. Therefore as preventive measure on the complaint of Bhimalkheda police respondent No. 2, Assistant Commissioner of Basavakalyan Taluk Bidar district initiated the proceedings under section 145 of Cr.P.C., 1973 on the basis of the FIR and Crime No. 0116/2017 dated 03.10.2017. 5. Further respondent No. 2 by exercising the power under section 145 of Cr.P.C., 1973 has taken possession of the movable and immovable properties from the petitioner and another and has appointed Tahsildar as receiver under section 146 of Cr.P.C., 1973 by passing the impugned order vide No. K/MAG/CR- 68/2016-17/6095-6099 dated 02.01.2017. 6. The petitioner has stated that the impugned order passed by the respondent No. 2 is without having any jurisdiction and that the respondent No. 2 in utter violation of section 145 of Cr.PC. assumed the power which is not available to him. Therefore, the action of respondent No. 2 is beyond the scope of section 145 of Cr.PC. and as such the said order deserves to be set aside. 7. The petitioner has further stated that admittedly, the civil suit in respect of appointment of Peetadhipathi of Hiramatha and its properties is pending before the civil Court in O.S.No. 106/2017 and O.S.No. 10/2017 and as such the matter is sub-judice and the rights of the parties are being adjudicated by the Civil Court. Therefore, the action of respondent No. 2 in taking possession of the Matha property is highly illegal and arbitrary. 8. Learned counsel for the petitioner submits that impugned order passed by the respondent No. 2 is illegal and in violation of the provisions of section 145 of Cr.P.C., 1973 and that the respondent No. 2 has no jurisdiction to initiate the proceedings under section 145 of Cr.P.C., 1973 in respect of immovable properties and therefore the same may be quashed. 9. 9. Per contra, learned High Court Government Pleader fairly submits that as per section 145 of Cr.P.C., 1973 the jurisdiction to initiate the proceedings under section 145 of Cr.P.C., 1973 vests with the Taluka Executive Magistrate. 10. Section 145(1) of Cr.P.C., 1973 deals with the procedure where the dispute concerning land and water is likely to cause breach of peace, reads thus: " 1. Whenever an Executive Magistrate is 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 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." 11. Therefore, it is crystal clear that the power or the jurisdiction to initiate the proceedings under section 145 of Cr.P.C., 1973 vests with an executive Magistrate, of course, he has to initiate the proceedings on the basis of the report submitted by the concerned police. The respondent No. 2 being the Assistant Commissioner and Sub Divisional Magistrate has no power or jurisdiction to act under section 145 of Cr.P.C., 1973 and initiate the proceedings as done in the present case. Therefore, the impugned order suffers from jurisdictional error and it is in utter violation of the provisions of section 145 of Cr.P.C., 1973 and as such the same is liable to be quashed. Accordingly, I proceed to pass the following: ORDER 1. The petition under section 482 of Cr.P.C., 1973 is allowed. 2. The entire proceedings initiated under section 145 of Cr.P.C., 1973 by respondent No. 2 vide order No. K/MAG/CR-68/2016-17/6095-6099, dated 02.01.2017 are hereby quashed.