Janaki Ramchandran and Others vs The State

These petitions coming on for hearing upon perusing the petitions and the affidavit filed in support of Crl.M.P. No. 1196/88 and the counter

affidavit filed with Crl.M.P. Nos. 1196 to 1200 of 1988 and upon hearing the arguments of Mr. T. S. Arunachalam, for M/s. M.

Karpagavinayagam K. V. Sridharan and M. Balu and S. Elumalai Advocates for the petitioners in Crl.M.P. Nos. 1196 to 1200 of 1983 and

respondents 1 to 3 in Crl.M.P. No. 1518/88 of Mr. A. N. Rajan, Government Advocate on behalf of the respondent in Crl.M.P. Nos. 1196 to

1200 of 1988 and for the 4th respondent in Crl.M.P. No. 1518/88 and of Mr. C. P. Pattabiraman, advocate for the petitioner in Crl.M.P. No.

1518/88, the Court made the following order :-

Crl.M.P. No. 1196 of 1988 is a petition under S. 482 Cr.P.C. praying to call for the records in ROC. No. 44/7720/1988 on the file of the

Additional District Magistrate and Personal Assistant (General) to the Collector of Madras and quash the proceedings.

The second petitioner has filed the affidavit on behalf of himself, and the first and third petitioners, contending that the first petitioner Thirumathi

Janaki Ramchandran is the President of the A.I.A.D.M.K. party and the third petitioner is one of the Deputy General Secretaries of the Party and

the second petitioner is the Acting General Secretary in charge of the Party. They have received subpoena from the Additional District Magistrate

stating that an enquiry under S. 145 Cr.P.C. in connection with the dispute over the possession of the building bearing No. 275, Avvai

Shanmugham Salai, Madras. 14, is pending and it appears to the Magistrate that they are likely to give material evidence. They have been

summoned to appear before him on 22-2-1988 to testify what they knew concerning the matter.

According to the petitioner no other order had been served on any of them and the subpoena has been entrusted to their Advocate to verify the

nature and details of the proceedings. Their Advocate filed vakalat before the Additional District Magistrate and prayed permission to peruse the

records and the said counsel perused the entire records in the proceedings and they became aware of the details relating to the proceedings and

besides the three petitioners 10 others had been shown as A Party. But no communication had been issued to them about the proceedings. The

papers in the proceedings pending reveal that a case in Crime No. 129 of 1988 had been registered in E. 2 Royapettah Police Station on 31-1-

1988 and the first information report had been sent to the learned Additional District Magistrate with the key with which additional lock had been

put up in the premises by the police. The key had been handed over to the learned Additional District Magistrate on 3-2-1988 by the Inspector of

Police, E. 2 Royapettah Police Station.

It is further stated in the affidavit that a report has been submitted by the respondent (Thiru Sethumadhavan) detailing incidents on several dates

and further stating that both the factions claim possession. So dispute concerning the premises is likely to cause imminent breach of peace. Rival

factions decided to take possession by force. In order to ensure preservation of peace and public tranquillity it is necessary to initiate action under

S. 145 Cr.P.C. to establish respective claims to actual possession.

There had been seven enclosures of which two are the letters addressed by the second petitioner to the police authorities and one of the

enclosures was a letter by Selvi Jayalalitha to the police on 8-1-1988. The three other enclosures related to Crimes Nos. 43, 44 and 45 of 1988

on the file of B-2 Police Station regarding the incident which took place on 13-1-1988. There was also a petition dt. 29-1-1988 by Thiru

Aranganayagam to the police. Eight persons have been shown as B Party counter petitioners.

Further according to the affidavit the documents enclosed along with the police report would indicate that the second petitioner was in physical

possession of the Party office on 31-1-1988 and he along with the third petitioner and others of his faction opened the Party Office at 9-30 a.m.,

entered inside and left the premises within 15 minutes. When the rival faction tried to enter into the premises, on the intervention of the police they

left. An averment had been made that on the basis of the second petitioner being in possession of the building and on his report, police bandobust

had been provided for the premises and the said bandobust continues. Accordingly the second petitioner has submitted that the police report itself

recognises the fact of his physical possession. According to him on the demise of their revered leader M. G. Ramachandran, himself being the

Senior Deputy General Secretary, took over as Acting General Secretary on 25-12-1987 by virtue of Rr. 20(4) and 21(2) of the Constitution of

the party. Having been in physical possession and continuing to be so, he locked the premises on 31-1-1988 and the keys relating to the office are

in his possession and custody. But they had been prevented entry to the building by the bandobust police who have put one extra lock on the outer

gate and sealed it. In addition to the keys of the lock put up by the petitioners, the keys of the extra lock, are now in the custody of the Additional

District Magistrate.

Further according to the petitioners from 25-12-1987 they continuously carried on the Party work from the premises concerned and the

proceedings initiated under S. 145 Cr.P.C. is without jurisdiction since there is no preliminary order under S. 145(1) Cr.P.C. Further there is no

application of mind by the Additional District Magistrate who has initiated the proceedings regarding the liklihood of breach of peace. A copy of

the order in terms of S. 145(3) Cr.P.C. made in writing under S. 145(1) Cr.P.C. had to be served and a mere service of summons would not be in

compliance with the provisions of the Cr.P.C. The subpoena served did not even indicate that the petitioners are parties concerned in the dispute.

But it only mentions that they are likely to give material evidence. The proceedings initiated are ab initio void inasmuch as the order under S.

145(1) Cr.P.C. had not been issued.

The object of S. 145 Cr.P.C. is to maintain the party in possession and what is contemplated in the section is actual physical possession and not

the right to claim possession and the report and the enclosures of the respondent filed in Court clearly indicate actual possession of the premises

with the second petitioner as Acting General Secretary of the Party. There had been abuses of process of law in locking and sealing the premises in

question by the Police and the Additional District Magistrate is not justified in resorting to S. 145 Cr.P.C. The locking of the premises by the

respondent the handing over the keys to the Court below is without sanction of law and therefore it is just and necessary that this Court has to

direct the respondent to remove the lock and seal so that the possession prior to 31-1-1988 could be justifiably and legally restored to the

petitioners.

The petitioner in Crl.M.P. No. 1518 of 1988 Dr. H. V. Hande has come forward with the prayer that he is not served with any notice of the

petition Crl.M.P. No. 1196 of 1988 and the other connected petitions and according to the petitioner Dr. H. V. Hande, A.I.A.D.M.K. Party was

in possession of the property concerned and he is the Seniormost General Secretary and Thiru Aranganayagam is the Headquarters Secretary of

the Party and they were jointly and severally in possession of the property for the due administration of the Party charged with the duty in respect

of the property and assets of the party as a person interested in the administration and possession of the building. Accordingly he has stated, if the

proceedings before this Court is permitted to continue without impleading him as a party, much prejudice, irreparable loss and damage may be

caused to the members of the Party and organisation. It will not be fair, proper, reasonable or just to adjudicate the matter without notice.

9A. The petitioner could not file a detailed statement as he has not been served with a copy of the petition and hence he has come forward with the

prayer to implead him as a respondent in the petitions filed by the petitioners in Crl.M.P. No. 1196 of 1988.

The petitioners in Crl.M.P. No. 1196 of 1988 have also filed Crl.M.P. No. 1197 of 1988 for stay of the proceedings in ROC. No.

A4/7722/1988 on the file of the Additional District Magistrate and Personal Assistant (General) to the Collector of Madras, pending disposal of

Crl.M.P. No. 1196 of 1988; Crl.M.P. No. 1198 of 1988 for a direction to the respondent to remove the lock and the seal illegally fastened to

premises No. 275, Avvai Shanmugham Salai, Madras-14, so that possession prior to 31-1-1988 could be justifiably and legally restored while

continuing the police protection; Crl.M.P. No. 1199 of 1988 for a direction to the respondent to remove the lock and the seal illegally fastened to

premises No. 275, Avvai Shanmugham Salai, Madras-14 Pending disposal of Crl.M.P. No. 1196 of 1988; and Crl.M.P. No. 1200 of 1988 to

dispense with the presence of the petitioners before the court of the Additional District Magistrate and Personal Assistant (General) to the

Collector of Madras, pending disposal of Crl.M.P. No. 1196 of 1988.

The respondent/Inspector of Police has filed the counter-affidavit contending that he is not aware of the fact the first petitioner is the President

of the AIADMK and the third petitioner is one of the Deputy General Secretaries of the Party. The allegation regarding the receipt of subpoena in

para 2 of the affidavit has been admitted and the allegation in Para 3 about entrusting the matter to the petitioners'' Advocate to examine the

records filed in has been denied of knowledge. Regarding the averments in para 4 of the affidavit that besides the petitioners 10 others have been

shown as parties and no communication issued to others have been admitted to be correct and the averment regarding the registration of Crime

No. 129 of 1988 on the file of E-2 Police Station on 31-1-1988, which is the subject matter of the proceedings under S. 145, Cr.P.C. also has

been admitted. But the allegation that an additional lock had been put up in the premises by the police and key for the said lock was handed over

to the Additional District Magistrate has been denied as incorrect.

It is further contended that as regards the averment that the second petitioner Thiru Raghavanandam was in physical possession of the property

since the property belongs to the AIADMK Party, it has been stated from that alone it cannot be contended that he could claim possession of the

building unless and until it is settled by a competent court as to which is the real AIADMK. The fact that the second petitioner Thiru

Raghavanandam took over as Acting General Secretary on 25-12-1987 by virtue of Rr. 20(4) and 21(2) of the constitution of the Party on the

demise of M. G. Ramachandran has been denied knowledge and it is further stated that the said averment that he is Acting General Secretary of

the Party since 25-12-1987 was strongly disputed by the other faction led by Selvi Jayalalitha. According to the counter, by the letter dated 8-1-

1988 written to the Commissioner of Police, Madras, Selvi Jayalalitha had averred that she was elected as the General Secretary of the AIADMK

Party on 1-1-1988 by the District Secretaries of the Party and on 2-2-1988 her election was ratified by the General Council and from that date

she was functioning as General Secretary of the Party. Hence according to the counter-affidavit Thiru Raghavanandam claining himself to be the

Acting General Secretary which is strongly disputed by Selvi Jayalalitha cannot claim to be in possession of the building as the building belongs to

AIADMK Party and not to any individual. The other averment that an extra lock was put up by the Police on the outer gate and the keys of the

extra lock are now in the custody of the Court below has been denied and has been stated to be incorrect. The contention that from 25-12-1987

onwards the petitioner were continuously carrying on the Party work in the premises concerned has been denied knowledge putting the petitioners

to strict proof.

The allegation that the respondent acted without jurisdiction has been denied and it is stated that there was apprehension of breach of peace

and hence proceedings under S. 145, Cr.P.C. had to be initiated before the competent Court. The contention that under S. 145, Cr.P.C.

proceedings the Executive Magistrate cannot restrain both the parties from entering into the property and posting police to keep watch and guard

the subject of dispute is stated to be incorrect and it has been contended that though S. 145, Cr.P.C. does not specifically empower the Executive

Magistrate to restrain both the parties from entering into any property, it does not also preclude the Executive Magistrate from restraining both the

parties from entering into the property. The ultimate object of S. 145, Cr.P.C. is not only to maintain the party in possession and force the other

party to go to the court of competent jurisdiction, but it is also for preventing any breach of peace in the locality. When the possession of the

building cannot definitely be established by either of the parties and that there is an apprehension of breach of peace, the Executive Magistrate can

take suitable action for the purpose of maintaining peace and tranquillity which is the very object of S. 145, Cr.P.C.

The proceedings were not initiated with any mala fide intention and the averment that actual possession of the concerned premises was with

Thiru Raghavanandam as he is the Acting General Secretary of the Party is not correct since Selvi Jayalalitha disputes the claim that Thiru

Raghavanandam is the Acting General Secretary of the Party. Unless and until it is settled by a competent Court as to who is the General Secretary

of the Party. Thiru Raghavanandam cannot claim to be in possession of the property by stating that be is the Acting General Secretary of the Party.

Since the property belongs to AIADMK Party possession of the building can only be said to be with the office bearers of the Party with the

General Secretary at the helm of affairs and unless and until the dispute with regard to the election of office bearers and General Secretary is settled

Thiru Raghavanandam cannot claim to be in possession of the building by virtue of his office as Acting General Secretary. The contention that the

premises was locked and sealed has been stated to be incorrect and according to the counter-affidavit the premises was not locked and sealed by

the police and hence there is no necessity for this Court to issue any direction to the respondent to remove the lock and seal which was alleged to

have been put up by the respondent. According to the counter-affidavit the building was neither locked nor sealed by the police and therefore no

such direction is necessary. It has been ultimately prayed that this Court has to dismiss the petitions as devoid of merits.

The contentions put forward by the learned counsel for the petitioners and the contentions put forward on behalf of the respondent were heard.

The learned Senior Counsel appearing on behalf of Dr. H. V. Hande who filed Crl.M.P. No. 1518 of 1988 for impleading himself was also heard.

The learned Senior Counsel for the petitioners Thiru T. S. Arunachalam put forward his contentions elaborately and the learned Senior

Counsel Thiru N. T. Vanamamalai also submitted his contentions in an elaborate manner. It is to be pointed out the petitioners have filed the

petitions under S. 482, Cr.P.C. with the prayer that the records on the file of the Additional District Magistrate and Personal Assistant (General) to

the Collector of Madras to be called for and the proceedings to be quashed. The petitioners have come forward with such a petition and other

petitions soon after the receipt of subpoena from the Additional District Magistrate. The subpoena received by them are to the effect that the

enquiry under S. 145, Cr.P.C. in connection with the dispute over the possession of the building is pending and for the purpose subpoena had

been issued to the petitioners to appear before the Additional District Magistrate since they are likely to give material evidence. They had been

summoned to appear on 22-2-1988 to testify with regard to the facts they know concerning the matter. On receipt of such subpoena it has been

submitted on behalf of the petitioners that the second petitioner entrusted the matter to his Advocate who filed vakalat before the concerned

Officer and obtained permission to peruse the records, and the records had been produced and the records disclose that besides the petitioners 10

persons had been shown as A Party and in that connection it has been contended apart from the three petitioners the others shown as A Party did

not receive any communication regarding the pending proceedings. A perusal of the records in Roc. No. A4/7720/1988 reveals that the

proceedings have been initiated on the basis of Crime No. 129 of 1988 registered by the respondent police on 31-1-1988. The first information

report in the Crime No. 129 of 1988 which is available in the records disclose that the ''A'' party is being headed by Thirumathi Janaki

Ramachandran, wife of late M. G. Ramachandran and B Party headed by Selvi Jayalalitha, M.P. As contended by the petitioners, besides the

three of the 10 others had been constituting ''A'' Party, and in B Party besides Selvi Jayalalitha, Dr. H. V. Hande who seeks to implead himself in

the proceedings before this Court and 6 others had been shown. The copies of the subpoena issued to the three petitioners are also of the same

nature. Besides the three petitioners of the A Party, subpoena are shown to have been issued to Thiru Aranganayagam, Dr. H. V. Hande and Selvi

Jayalalitha of B Party.

A careful reading S. 145(1), Cr.P.C. can be said to be disclosing that an Executive Magistrate when he is satisfied from a report of a police

officer or upon other information that a dispute likely to cause a breach of 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. So far initiation of proceedings, there should be a dispute and such dispute is likely

to cause breach of peace. When the authority, namely, the Executive Magistrate is so satisfied he must pass a preliminary order under sub-section

(1) of S. 145, Cr.P.C. and afterwards make an enquiry as contemplated under S. 145(4), Cr.P.C. It can also be stated that it is incumbent on the

Executive Magistrate when he is so satisfied about the information with regard to breach of peace concerning any dispute with regard to land or

water, he shall make an order in writing stating the grounds of his being so satisfied. The records clearly disclose that there is nothing in writing

stating the grounds of the Magistrate being so satisfied. It has been laid down by the Courts that where the Magistrate proceeds under S. 145,

Cr.P.C. without being satisfied as to the existence of a dispute likely to cause breach of peace he acts without jurisdiction and even the provision

under S. 465. Cr.P.C. cannot cure such irregularity. Having regard to such circumstances without going further into the matter it could be stated

straightway that the proceeding that has been initiated in this case has to be quashed.

The learned senior counsel for the petitioners mainly put forward the contention that inasmuch as there had been no such order in writing stating

the grounds of the Magistrate being so satisfied, the proceeding has to be quashed. It was also further contended that the records available before

the learned Magistrate who initiated the proceeding could clearly disclose that the petitioners only were in possession of the premises concerned

and it was B Party persons led by Selvi Jayalalitha, M.P., wanted to trespass into the premises and take forcible possession of the premises and in

such circumstances the petitioners having been in possession during the relevant time have to be put in possession and it is also further contended

that under S. 145, Cr.P.C. the jurisdiction of the Executive Magistrate is limited to decide the question of possession and not the title or right to

possess. The learned Senior Counsel for the petitioners pointed out that the first information in Crime No. 129 of 1988 registered by the

respondent clearly discloses that the second petitioner Thiru Raghavanandam was the Senior Deputy General Secretary and on 2-1-1988 the

group headed by Selvi Jayalalitha conducted the General Counsel meeting at Hemamalini Mandapam situate near the premises in dispute and a

group of party men opposed her gathering in front of the premises in question and shouting slogans against her were preparing themselves to

prevent her and her followers in case they try to enter the party office and the timely intervention of the police party averted the possible untoward

incidents. It was also pointed out that in the letter addressed by the second petitioner dated 5-1-1988 apprehension had been expressed that Selvi

Jayalalitha and Thiru Aranganayagam would trespass into the party building.

A perusal of the concerned first information report discloses that on 8-1-1988 Selvi Jayalalitha presented a petition to the Commissioner of

Police with a copy to the Inspector of Police, Royapettah Police Station (the respondent herein) asserting her right to enter the Party office. The

said letter is also available in the case records. The records also disclose that on 13-1-1988 attempts were made by Selvi Jayalalitha and her

followers to enter the Party Office in substantial strength to hold a meeting and the situation became very tense and the police had to interfere and

take necessary action. In that connection cases in Crime Nos. 43 of 1988 to 45 of 1988 are shown to have been registered. The records also

disclose that 31-1-1988 at about 9-30 a.m. Thiru Raghavanandam the second petitioner herein, Thiru Kalimuthu and 50 others of Thirumathi

Janaki Ramachandran faction (A Party) opened the premises, entered the premises and later left the premises within 15 minutes. On coming to

know the same Thiru K.K.S.S.R. Ramachandran, Thiru Thirunavukkarasu and about 300 others of Selvi Jayalalitha faction came there at about

11.45 a.m. and tried to enter the premises and on the intervention of the police they left the place. The first information report in crime No. 129 of

1988 clearly discloses that on the basis of Thiru S. Raghavanandam being in possession of the building, on his request the police bandobust had

been provided for the premise and it had been shown to be continued till date. The case was registered on 3-2-1988. It is to be pointed out that

the proceedings have been initiated on the basis of the information furnished by the respondent, on the registration of the case in Crime No. 129 of

1988, and the subpoena issued to the petitioners are of the same date namely 3-2-1988. In such circumstances the contentions put forward on

behalf of the petitioners that the second petitioner and the petitioners belonging to A party headed by Thirumathi Janaki Ramachandran had been

shown to be in possession even on 31-1-1988 and therefore they are entitled to be in possession and inasmuch as there had been no order in

writing by the Magistrate of his being satisfied about the existence of dispute likely to cause breach of peace, the proceeding is liable to be quashed

has to be accepted.

The learned Senior counsel for the petitioners submitted the decisions reported in Peria Mannadha Goundar and Others Vs. Marappa

Goundar, and Mettupalli China Kondappa (died) by L. Rs. Chinna Venkatareddy and Others Vs. Ramsetty Ram Row and Another, with regard

to the contention regarding passing of the preliminary order by the Magistrate. The decision reported in Peria Mannadha Goundar and Others Vs.

Marappa Goundar, has been rendered by Krishnaswami Reddy, J., and it has been laid down by the learned Judge that under S. 145(1), Cr.P.C.,

the Magistrate having jurisdiction shall make an order in writing that he is satisfied either from a police report or other information that a dispute

likely to cause a breach of the peace exists and state the grounds of his satisfaction before requiring the parties concerned in such dispute to attend

his court and put in written statements. This provision of making the order in writing and stating the grounds of his satisfaction appear to be

mandatory. It has also been laid down that the preliminary order should state clearly the reasons and grounds on which the satisfaction is based

and that the Magistrate had applied his mind in passing the preliminary order.

The learned Judge has followed the earlier decision rendered by Ananthanarayanan, Officiating Chief Justice, as he then was, in Nagammal v.

Mani, 1966 MLW 101. In that decision it had been held that where the preliminary order was drawn by the Magistrate merely on the information

laid by the Inspector of Police about the dispute, he must be satisfied that a dispute likely to cause breach of peace exists; and it is mandatory that

he should state ''the grounds of his being so satisfied'' or language to similar effect must be employed to indicate that the Magistrate had applied his

judicial mind to the information in coming to the conclusion that he should take action under S. 145(1), Cr.P.C. It had been further observed by the

learned Judge that a Magistrate should not take action merely on a police report.

In the decision reported in Mettupalli China Kondappa (died) by L. Rs. Chinna Venkatareddy and Others Vs. Ramsetty Ram Row and

Another, the facts revealed that there had been notice signed by the Head Clerk of the Magistrate and it contained the requisite essentials of an

order under S. 145(1) and it had been held in that case the service of such a notice cannot fill up the lacuna of absence of a preliminary order and it

was held that the subsequent proceedings culminating in the final order become vitiated.

The learned Senior Counsel for the petitioners also submitted the decision reported in Mst. Hosnaki and Others Vs. State, . It was a Bench

decision of the Allahabad High Court. It has been laid down therein that the object behind the provisions of S. 145 is merely to prevent a breach of

the peace by maintaining one party to the dispute in possession and forbidding the other on pain of a penalty to interfere with it. A breach of the

peace must be prevented and the legislature has thought that the best way of doing it is by maintaining one party in possession and forcing the other

party to go to a Court of competent jurisdiction for a decision of title.

The learned Senior Counsel for the petitioners also placed reliance on the decisions reported in Ramani Mohan Das v. Usai Mag, AIR 1965

Tri 41 : 1965 2 Cri LJ 809; Tarulata Devi v. Nikhil Bandhu Mishra, 1982 Cri LJ 1665 (Gauh) and Renu v. B. S. Rekhi, 1985 Cri LJ 688 (Delhi).

The decision reported in Ramani Mohan Das v. Usai Mag, AIR 1965 Tri 41 : 1965 2 Cri LJ 809 has been rendered by the Judicial

Commissioner. The facts in that case revealed that the parties concerned who claimed possession over a plot of land were unable to show that the

land had been settled with them. From such circumstances the Magistrate appears to have restrained both the parties from entering the disputed

land and the parties were directed to take steps with regard to the settlement of the land from the competent authority and a Receiver was asked

to hold auction and the parties were given the right to bid. Against such an order there was a criminal revision before the learned Sessions Judge

and the learned Sessions Judge made the reference for setting aside the order passed by the learned Magistrate. The Judicial Commissioner has

pointed out that a perusal of the record discloses that the learned Magistrate without arriving at any decision as to which party was in possession of

the disputed land passed an order restraining both the parties from entering into the disputed land, and such an order reveals that the learned

Magistrate has misconceived the entire scope of proceedings under S. 145, Cr.P.C. The Judicial Commissioner has further observed observed

that if the Magistrate had cared to look into the provisions of S. 145, Cr.P.C. he would have known that what he was to decide was the question

of actual possession without referring to the parties'' right to such possession, that is, irrespective of the question whether such possession is

backed by evidence and title. In such circumstances the order passed by the learned Magistrate was set aside. The decision reported in Smt.

Tarulata Devi and Others Vs. Nikhil Bandhu Mishra and Others, has been rendered by a learned single Judge of the Gauhati High Court. It has

been laid down therein that the foundation for assumption of jurisdiction by the Magistrate under S. 145, Cr.P.C. is an apprehension of breach of

peace. Under S. 145(1) the jurisdiction of the Magistrate is exclusively limited to decide whether any or which of the parties was on the date of the

preliminary order in possession of the land in dispute. The Magistrate does not decide or purport to decide a party''s title or right to possession of

the land as those areas are especially reserved for the civil court. The Magistrate can issue only a declaratory order in favour of a party that he is

entitled to possession until evicted therefrom in due course of law irrespective of the rights of the parties which will have to be determined in the

manner provided by law. The decision reported in Jai Bhagwan and Others Vs. State, has been rendered by the Delhi High Court. Therein it has

been laid down that the mere fact that a dispute exists between the parties which is obviously of a civil nature would not warrant assumption of

jurisdiction by a Magistrate under S. 145, Cr.P.C. the dispute must relate to possession over the property. A fugitive act of trespass or transient

interference with the possession of one party by the other party would not change the character of the dispute which essentially relates to civil

rights. It is also pointed out therein with reference to S. 146, Cr.P.C. that locking and sealing of the premises by the police is an abuse of process

of law and there is no provision of law which conferred such a power on the police. Only a Magistrate has the power to attach the disputed

property under S. 146, Cr.P.C. provided he is satisfied that ingredients of the said section exist.

The learned Senior Counsel Thiru N. T. Vanamamalai, during the course of his submissions on behalf of Dr. H. V. Hande submitted the

decision reported in J. P. Shah v. C. K. Udhawani, 1986 Cri LJ 988 (Bom) in support of his contention that even before passing of a preliminary

order parties can be called to appear before the Magistrate inasmuch as the Magistrate has to be satisfied with regard to the existence of the

dispute which is likely to cause breach of peace and it was submitted by the learned Senior Counsel that it is open to the Magistrate to issue

subpoena and in such circumstances the petitioners cannot come forward with a petition under S. 482, Cr.P.C. to quash the proceedings. The

decision relied on by the learned Senior Counsel has been rendered in Criminal Writ Petition by a Learned Judge of the Bombay High Court. The

facts revealed in that case related to dispute in respect of surrender of tenancy by respondent 1 in that case in favour of the landlord, and the

Magistrate who had initiated proceedings held that the surrender of tenancy in favour of the landlord was unauthorised and the respondent 1 was

wrongfully dispossessed and the respondent 1 was the person in actual possession on the material date. On the finding by the learned Magistrate

there was a Criminal revision application to the Sessions Court and the order was challenged in the Sessions Court not only on merits but it was

also contended that in view of the procedure adopted by the learned Magistrate in issuing notices to and hearing the parties before passing the

preliminary order, the whole proceedings were rendered illegal and the final order invalid. The learned Additional Sessions Judge rejected that legal

objection and found that the conclusions of the Magistrate were in accordance with law, common sense, ordinary behaviour of human beings and

are absolutely just. That order passed by the learned Additional Sessions Judge was not challenged on merits, but on the points of law as to (1)

Whether a Magistrate is competent to hear both the parties before passing a preliminary order under S. 145(1), Cr.P.C. for the purpose of arriving

at the satisfaction that a dispute likely to result into a breach of the peace exists ? and (2) Whether hearing the parties before passing an order

under S. 145(1), Cr.P.C. renders illegal and invalid the subsequent proceedings and the final order ? In such circumstances only in the said criminal

write petition the decision has been rendered. If one carefully considers the said decision, it will be clear that the effect of the decision is that even

before issuing notice to the parties concerned in such dispute to attend the court to put in written statement of their respective claims, it is open to

the Magistrate, before passing a preliminary order to make himself satisfied regarding the existence of the dispute to collect information from the

parties if necessary by issuing notice to them. But in this case it cannot at all be stated that subpoena had been issued by the Additional District

Magistrate to the petitioners having regard to the wording in the subpoena. As already stated, it has been mentioned in the subpoena that an

enquiry under S. 145, Cr.P.C. in connection with the dispute over the possession of the building described thereunder is pending before him. So it

cannot at all be contended that for the purpose of being satisfied the Magistrate had issued subpoena. So the said decision cannot at all be said to

be helpful to support the contention put forward by the learned Senior Counsel appearing for Dr. H. V. Hande.

Learned Senior Counsel appearing for Dr. H. V. Hande also submitted the decision reported in R.H. Bhutani Vs. Miss Man J. Desai and

Others, . In that decision it has been laid down in Para 9 at page 16 that the satisfaction under sub-section (1) of S. 145, Cr.P.C. is of the

Magistrate and the question whether on the materials before him, he should initiate proceedings or not is, therefore, in his discretion which, no

doubt, has to be exercised in accordance with the well recognised rules of law in that behalf. The High Court, in the exercise of its revisional

jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate. This decision cannot also be of any use in

this case inasmuch as the petitioners have come before this Court not with regard to the satisfaction or otherwise of the Magistrate concerned.

The learned Senior Counsel appearing for Dr. H. V. Hande also submitted the decision reported in Emperor Vs. Raghunath Venaik Dhulekar

and Another, in support of his contention with regard to the functioning of the Police. In that decision a Division Bench of the Allahabad High Court

had an occasion to consider the meaning of the term ''Interpose'' as used in S. 149, Cr.P.C. In that case a contention on behalf of the State was

put forward that under S. 149, Cr.P.C. every police officer could ''interpose, for the purpose of preventing the commission of a cognizable offence

and it has been pointed out that to hold that under S. 149, Cr.P.C., a police officer can pass any oral order he thinks desirable would be to hold

that his word is law. The said decision having regard to the facts in our case may not be of any help.

The learned Senior Counsel also pointing out S. 23 of the Police Act contended that prevention of commission of offences is the duty of the

police officer concerned and the police officers who were on duty have submitted the report to the Magistrate concerned and in such

circumstances the Magistrate has initiated the proceedings and therefore the petitioners coming forward with these petitions at this stage may not

be proper.

Learned counsel appearing for the respondent contended that on the demise of M. G. Ramachandran, who was the General Secretary of the

Party, the Party had split into two groups one headed by Thirumathi Janaki Ramachandran and another headed by Selvi Jayalalitha and both the

groups are trying to take possession of the premises and the dispute between the factions was likely to cause breach of peace, and actually cases

had been registered and in such circumstances only the proceeding has been initiated. It was also contended that the respondent police did not put

up any lock in the premises.

During the course of his submissions the learned Senior Counsel Thiru T. S. Arunachalam submitted that actually the property belonged to

Thirumathi V. N. Janaki herself and it was settled by her in favour of her husband Thiru M. G. Ramachandran who was the General Secretary of

the Party and he is having the document with him. But inasmuch as this Court is not concerned with regard to the title of the property it is not

necessary to enter into a discussion with regard to the said document.

On a careful consideration of the materials available on record it has to be held that the initiation of the proceedings by the learned Additional

District Magistrate without passing an order under S. 145(1), Cr.P.C. is bad and in such circumstances the proceeding before him has to be

quashed. It is also made clear from the records available in the case that the second petitioner and the others headed by Thirumathi Janaki

Ramachandran had been in possession of the premises even on 31-1-1988, three days prior to the initiation of the proceedings and in such

circumstances they are entitled to be in possession of the premises.

Learned Senior Counsel for the petitioners also submitted an unreported decision rendered by Maheswaran J., in Crl.M.P. No. 1093 of 1987,

dt. 10-3-1987, in a petition filed under S. 482, Cr.P.C. The said decision related to a dispute with regard to possession of a theatre in Cuddalore

and the Executive Magistrate concerned viz., the Tahsildar, had passed a preliminary order restraining both the petitioner and the counter petitioner

from entering into the property till the petition was decided according to law and also directed the parties to appear in person before him. The

Magistrate also directed the Inspector of Police, Tiruppapuliyur, to keep watch and guard the subject of dispute. It has been pointed out by the

learned Judge that the first clause restraining both the petitioner and the counter petitioner from entering into the property in question was not

warranted by the provision of S. 145(1), Cr.P.C. The learned Judge has also pointed out that the Magistrate has to pass an order if he is satisfied

on a report of a police officer stating the grounds of his being so satisfied and there is no provision in S. 145(1), Cr.P.C. empowering the Executive

Magistrate to restrain both the parties from entering into the said property.

On a consideration of the materials available on record and also on the principle laid down in the decisions referred to above, the proceeding in

ROC. No. A4/7720/1988 on the file of the Additional District Magistrate and Personal Assistant (General) to the Collector of Madras is quashed

and accordingly Crl.M.P. No. 1196 of 1988 is allowed.

In view of the orders passed in Crl.M.P. No. 1196 of 1988, no orders are necessary in Crl.M.P. Nos. 1197 and 1200 of 1988 and they are

dismissed.

In view of the orders passed in Cr.M.P. 1196 of 1988 Cr.M.P. 1199 of 1988 becomes infructuous and is accordingly dismissed.

So far as Cr.M.P. 1198 of 1988 is concerned, the petitioners have come forward stating that the respondent put an additional lock in the

premises and key has been handed over to the Additional District Magistrate. In the counter the said averment has been specifically denied and it

has been stated that the premises was not locked and sealed by the police. Hence there is no necessity for this court to issue a direction to the

respondent to remove the lock and seal. Under such circumstances, if there is any additional lock besides the lock put up by the petitioners, it is

open to the petitioners to break open the lock and enter the premises and continue to be in possession of the premises. Cr.M.P. 1198 of 1988 is

ordered accordingly.

So far as Cr.M.P. 1518 of 1988 is concerned, I have heard the learned Senior Counsel on behalf of the petitioner in that petition and I have

referred his contentions. Having regard to the final order passed in Cr.M.P. 1196 of 1988, Cr.M.P. 1518 of 1988 is dismissed.

Order accordingly.