Gopal Pilial and others vs State by the inspector of Police, Bodi and others

Ratnavel Pandian, J.—The Petitioners belonging to A party In M.C. 1181 of 1972 on the file of the Sub Divisional Judicial Magistrate,

Usilampatti, have preferred this revision petition against the order therein. the proceedings u/s 145 Code of Criminal Procedure were initiated on

the complaint preferred by the Inspector of Police, Bodi, in Crime No. 137 of 1972, as against the Petitioners of A-party and the Respondents of

B party. Both parties filed their written statements and documents on their respective sides The subject-matter of the proceedings was the

possession of the land in S. No. 155 in Maniyampatti, hamlet of Narasingapuram village, extending to an area of 19 acres 10 cents. It is the case

of the claimant-Petitioner No. 1 of A party that he was in possession of the entire extent of the land and the B party have no right to the properly

and that they are not in possession of the said property, whereas Respondents 1 and 2 in B Party would claim that they were in possession and

enjoyment of 2 acres 20 cents each in the said survey number, as described in their written statement. The learned Magistrate referred the matter

to the District Munsif, Periakulam u/s 146(1). Cr.P.C to decide the question whether any or which of the party was in possession of the property

in dispute on the date of the order passed u/s 145(4) Cr.P.C.

The learned District Munsif, to whom the matter was referred, after making the due enquiry, had given the finding that the counter-Petitioner No.

1 in B party was in possession and enjoyment of 2 acres 20 cents of dry land as stated by him in his counter and counter-Petitioner No. 2 in B

party was in possession of 31/2 kulis of land and the reaming extent in the said survey number was in possession and enjoyment of the A party. On

receipt of the said finding, learned Magistrate passed the above order u/s 145(6), Cr.P C.

Mr. Alagumalai, appearing for the Petitioners, would raise the following contentions: the Magistrate, while passing the final order, has not

applied his mind as to whether there was likelihood of the breach of the peace as on the date of the order and has not properly assessed the

documentary evidence and the kist receipts in respect of patta No. 1385 and therefore the final order is vitiated. He relied upon the decision in

Dayaramdas v. Rajaram (1970) 2 Cri. L.J. 1026 wherein it has been held that the Magistrate must find who was in actual possession during the

relevant period. In the instant case, the fact that the Magistrate has issued the order under S. 1145(1) would show that he was satisfied that there

was the existence of likelihood of breach of peace in respect of the possession of the property, and when the Magistrate has passed the final order

in respect of the same proceedings, there is an irresistible inference that the likelihood of the breach of the peace existed on the date of the passing

of the order. He also laid emphasis on the order passed in Shanmugam v. Sodeswaran and others Crl. R.C.34 of 1969 of this Court-Judgment

dated 17th July 1969), wherein Krishnaswamy Reddy, J., has observed that the learned Magistrate in that case ought to have gone into the merits

of the case by perusing the affidavits filed by the parties and should have come to the conclusion independent of the order passed by the Civil

Court on an application. It is seen from the said order that the learned Magistrate had based his order upon the order passed by the Civil Court in

an interlocutory application for injunction. The facts of that case were thus quite different from the fasts of the present case.

The second point that was raised by the learned Counsel for the Petitioner is that the Magistrate has not made any attempt to come to a

conclusion on the merits of the case with a view to ascertain which of the contesting parties was actually in possession of the property and that it

ought to have referred the matter u/s 146 only if it was unable to make up its mind with the equally balanced evidence and that as there is no

reference or detailed discussion on the contents of the respective documents and affidavits filed by the partial, the reference itself is not proper:-

Vide Ramjilal and Others Vs. Jawahar and Others, . But, after going through the entire judgment in that case, it is clear that the revision to the

District Court and the reference therefrom to the High Court concerned with an attachment made by the Magistrate and the reference u/s 146,

Cr.P.C., to the civil Court, and the said order of attachment and the reference to the Civil Court were found to be not sustainable. The facts of the

said case reveal that the revision was filed even before the civil court clutched the jurisdiction under reference and gave any finding. But, in the

instant case, both parties have accepted the reference before the Civil Court which in turn had also adjudicated on the same. Therefore, at this

stage, after the Civil Court had rendered its finding on the question to fact, it is not open to the Petitioners herein to challenge the said reference

Therefore, the above decision is not applicable to the facts of the present case.

Mr. Nainar Sundaram, appearing for the B party, would rely on the decision in Akonda Gounder v. The State 1951 M.W.N. Cri. 263 wherein

it has been held that there is no need for a Magistrate to state the nostrum that he is satisfied that there is a likelihood of the breach of the peace,

and that the set words do not matter so much in modern courts, and that no doubt the Court must be satisfied from information of some sort that

the dispute likely to cause breach of the peace exists and that it need not state it in set words. Then, her relied on the decision in Velur

Devasthanam Vs. A. Sambandamurthi Nainar, wherein it was held that the object of Section 143, Crl.P.C., is to preserve public peace and

tranquility of the realm from riots and commotions; orders u/s 145, Cr.P.C., are merely police orders made to prevent breach of the peace and

they decide no questions of title; the foundation of the jurisdiction of the Magistrate is the apprehension felt by him that unless action is taken, there

will be a breach of the peace; orders passed by a competent Magistrate are not to be lightly interfered with by the High Court, first because the

object of such orders is to preserve peace and secondly because the aggrieved party has his remedy by a civil suit.

In the light of the above decisions, I see no reason whatever to interfere with the order pasted by the learned Magistrate. It is open to the

Petitioners to seek their remedy, if any, before the Civil Court, if they are so advised. This revision petition is accordingly dismissed.