Kailasa Thevar and Another vs Ramiah and 42 Others

Arunachalam, J.—Petitioners were initially shown as members Nos. 1 and 14 of ''A'' Party in M.C. No. 75 of 1992 then pending on the file

of Executive Sub-Divisional Magistrate, Paramakudi. Respondents 1 to 22 were arrayed as members of ''B'' party in the same proceeding, while

Respondents 23 to 43 also formed part of ''A'' party till about a few days before the final order was passed. Learned Magistrate passed the

preliminary order under S.145(1) Cr.P.C. on 8.10.1992 on the basis of Valinokkam Police Station Crime No. 161 of 1991 dated 1.10.1991. The

preliminary order reads as hereunder:

Order U/s 145, Cr.P.C.: Whereas information has been laid before this Court concerning dispute in possession of landed property shown in

schedule appended to this order which lies within local jurisdiction of this court and there is likelihood of breach of peace concerning the dispute

between the above two parties.

After careful examination of this case, I hereby order that both ''A'' and ''B'' parties be directed to maintain status quo over the disputed property

till the disposal of this case.

Both the parties are directed to appear before this Court on 16.10.1992 at 10.30 a.m. with all connected records available with them relating to

the disputed property.

Schedule omitted.

A careful perusal of the preliminary order will show, that Para 1 relates to information laid before the Executive Magistrate. The second

paragraph merely states that after careful examination of this case an order had been passed directing both ''A'' and ''B'' parties to maintain status

quo over the disputed property, till disposal of this case. Last paragraph only fixes the date and time for appearance of the parties concerned.

Nowhere in paragraph 2 of the preliminary order, it is evident, that the Executive Magistrate has assessed the information laid before him, which

forms part of paragraph 1 of the order and the basis on which he had arrived at his objective satisfaction. Even if we take it that the Executive

Magistrate had carefully examined the information, his subjective satisfaction on the information placed before him must be made evident in the

preliminary order, for under S.145(1) Cr.P.C. the relevance of the following words had been the subject-matter of catena of decisions:

Whenever an Executive Magistrate is satisfied...he shall make an order in writing stating grounds of his being so satisfied.

There is no indication in the preliminary order, that on information laid before the Executive Magistrate, the Magistrate himself was satisfied about

any likelihood of breach of the peace. It is apparent that the preliminary order under S.145(1) Cr.P.C. has been mechanically passed by the

Executive Magistrate.

Whatever it be, in this revision, it does need consideration, if this defect in the preliminary order will be sufficient to erase the entire proceedings

which has ultimately ended in passing of a final order under S.145(4) Cr.P.C. The impugned order dated 12.11.1992, apparently under S.145(4)

Cr.P.C, shows that when it was pointed out that some of the individuals mentioned in ''A'' and ''B'' party were not alive, fresh notices were issued

on 27.10.1992. Again, when it was brought to his notice, that there was no common interest amongst the individuals shown as ''A'' party, in the

notice dated 8.10.1992, petitioners alone were retained as members of ''A'' party, while relegating the other members, initially shown as belonging

to ''A* party, to be classified as members of ''C'' party. Such of those members who are not alive were removed and their heirs were summoned.

The case was t*ken up for trial finally on 9.11.1992. Nowhere in the order now challenged, it appears that opportunity was given to either party to

adduce oral evidence. Paragraph 3 of the impugned order lists out documents Exs.A-1 to A-14 filed by members of ''A'' party. Similarly,

paragraph 4 lists out the several documents brought on record by members of ''B'' party. Paragraph 5 relates to dropping of action as far as ''C''

party members are concerned. The only operative portion in the impugned order is paragraph 6. It will be better to extract the entire paragraph,

for it appears, that the impugned order is a classic example of what an order ought not to be. It reads:

I have perused the documents filed by the counsel of ''A'', ''B'' and ''C'' party, the written statements submitted by the individuals and also

considered the contentions. It is clear from the factual report submitted by the Tahsiidar, Mudukulathur, in his Roc. B2/2498/91 dt. 13.10.1992

that the individuals mentioned as ''B'' party are cultivating the lands in question for a long time and the lands in dispute are jointly under their

enjoyment and that by consent the individuals are cultivating the portion of their land in question. The individuals of ''A'' party and ''C'' party were

not able to state in clear terms the extent of land each one is entitled for ownership and possession. As regards ownership the matter is in dispute

and a civil suit is pending in the Sub-Court at Sivaganga, according to the counsel. There is no satisfactory evidence to establish possession on the

part of ''A'' and ''C'' party. As the individuals mentioned in ''C'' party were not involved in the dispute causing breach of peace at any time and are

not likely to cause breach of peace further action is dropped against them. Since the object is to present breach of peace and it is only to find out

the actual possession and not the right to possession, I do decide and declare that the actual possession of the lands in question is with the ''B''

party. Accordingly it is ordered that the individuals mentioned as ''B'' party will retain possession until ousted by due course of law. The declaration

under S. 145 Cr.P.C. in Form 25 is appended with this proceedings.

Nowhere in paragraph 6, the Executive Magistrate has chosen to discuss the inherent merits, of the documentary evidence, brought on record by

either party. Learned Executive Magistrate has chosen to rely upon a report submitted by Tahsildar, Mudukalathur, dated 13.10.1992. The said

factual report of the Tahsildar, has not been marked as an exhibit in the impugned proceeding, and an opportunity afforded to the petitioners, to

challenge the said report. When opportunity had not been afforded to the petitioners, it is not known as to how the Executive Magistrate has

chosen to observe, that individuals of ''A'' party and ''C'' party were not able to state in clear terms, the extent of land each one is entitled to, for

ownership and possession. Further, learned Executive Magistrate must have been aware, that proceedings under S.145, Cr.P.C. has no relevance,

whatever, to ownership. An abrupt conclusion has been arrived at, or the Executive Magistrate has decided that the actual possession of the lands

in question was with the ''B'' party and therefore a declaration had to be made. A final order must state the facts on which proceedings were

initiated, the evidence placed by either party for scrutiny, the nature of contentions advanced and assessment of those contentions based on

documentary and or/oral evidence, must have formed part of the discussion portion of the order, before the verdict is delivered. No such

procedure has been followed by the Executive Magistrate. The only basis or foundation for the final order appears to be, the factual report

submitted by the Tahsildar, Mudukalathur, dated 13.10.1992, which appears to be extraneous material not supplied to either part or marked as a

document in the proceeding. Solely on the ground of the order not being a reasoned out order, there would be no difficulty, whatever, in setting

aside the same.

However, one more question of utmost importance has been submitted for my consideration by Mr. A. Packiaraj, petitioner''s counsel. He

pointed out a ground, specifically taken in the memorandum, that in spite of pleading for an opportunity to adduce oral evidence that had not been

afforded. He further brought to my notice, that members of ''B'' party on whose behalf an affidavit has been sworn to, to vacate the interim order

of stay ordered by this Court, does not anywhere controvert the ground that an opportunity to adduce oral evidence was prayed for by ''A'' party,

but not afforded by the Executive Magistrate, though certain other facets of the affidavit of the petitioners, have been denied in the affidavit sworn

to on behalf of ''B'' party members. Even otherwise, the impugned order itself clearly shows that no oral evidence was brought on record. If no

oral evidence was forthcoming will be reasonable to expect the impugned order to state that in spite of opportunities afforded, no oral evidence

was forthcoming.

This very question was considered by this Court in Palaniappan K. v. The Executive First Class Magistrate (1989 L.W.(Crl.)321). This Court

observed as follows:

The order does not indicate about the marking of any exhibits by either party. Obviously no oral evidence has been recorded. There is no

endorsement that the parties had not produced any evidence, either oral or documentary. On the contrary find that the very statement of the

petitioner, specifically wants examination of witnesses on the aspect of possession. That opportunity had not been afforded by the trial Magistrate

to the petitioners. This is a very serious lacuna.

Again, the following observations were made in the same case:

After the coming into force of the Criminal Procedure Code, 1974, possession cannot be decided on the basis of affidavits alone. Further, the trial

Magistrate has not at all considered the effect of the documents filed by the petitioners in the impugned order.... The order of the trial Magistrate

appears to be absolutely perfunctory. The reference to revenue records which do not form part of the legal evidence in this case is one other

aspect which will be sufficient to set aside the impugned order...Sub-S. (4) of S.145, Cr.P.C. enables both parties to adduce oral and

documentary evidence and the magistrate is bound not only to receive all such evidence as may be produced but also is empowered to take such

further evidence, if any, as he thinks necessary.... The evidence contemplated includes both oral and documentary. In order to enable parties to

adduce evidence reasonable opportunity has to be given to produce documents and witnesses and the magistrate will also have a duty to summon

such witnesses as may be required by either party. This procedure prescribed under sub-S. (4) must be followed, for, it is mandatory and the oral

evidence adduced will have to be recorded and documents properly proved according to the rules of evidence. After the production of the oral

and documentary evidence, the Magistrate will have to decide the question of possession on the evidence placed before him, which necessarily

implies discussion of the evidence placed before him.

None of the principles enunciated in the aforestated decision have even been attempted to be followed by the Executive Magistrate.

The impugned order refers to a civil suit pending between the parties in respect of ownership. Nothing further about the nature of the civil suit or

its stage is available either in the order or through the counsel for either party, even at this stage. It is not possible to consider whether the pending

civil suit alone can take care of the disputes or any other proceeding, be it under S.145, Cr.P.C. or under S.107, Cr.P.C. may be necessary to

prevent breach of the peace.

If the preliminary order could have been sustained, it would have still been possible to remand the matter for fresh disposal, on the basis of the

sustainable preliminary order. I am unable to sustain even the preliminary order for the reasons set out earlier. This court had occasion to consider,

the effect of a defective preliminary order on the ultimate final order passed by the Executive Magistrate in Natesa Thevarv. Executive Magistrate

1987 L.W Cri 50 K.M. Natarajan, J., observed as hereunder:

Applying the ratio laid down in the above decisions to the facts of this case it has to be observed that the Magistrate in this case, except stating that

he was satisfied that there is dispute in regard to possession of the land in question between both the parties and if any one of the parties try to

enter upon the land, there is likelihood of breach of peace, he has not stated the grounds of his satisfaction or the source of information he received

either from the police or from the party for passing such a preliminary order. These decisions clearly lay down that the preliminary order should

state clearly the reasons and grounds on which the satisfaction is based and that the Magistrate has applied his mind in passing the preliminary

order and the same is mandatory. Non-compliance with the said provision certainly vitiates the said order as it is one which is passed without

jurisdiction. Hence the subsequent final order will not have the effect of rendering the proceedings valid. Hence, I am of the view that the said

preliminary order is not valid as it is not the one passed in consonance with the provision of S. 145, Cr.P.C. and as such it is liable to be quashed.

Of course, the learned Judge was applying the principles enunciated in similar cases to the peculiar facts placed before him. It cannot be stated,

that in every case a preliminary order with some defect, will affect the ultimate final order. It will always be a factual question, which may have to

be considered on the existing circumstances and a universal and rigid formula, cannot be enunciated.

As far as the present is concerned, except the first information report dated one year prior to the passing of the preliminary order, no other

material appears to have been relied upon. Similarly even in the passing of the final order, except the report of the Tahsildar dated 13.10.1992,

nothing else forms the subject-matter of effective discussion. Krishnaswamy Reddy, J., had occasion to consider the effect of a belated preliminary

order, separated by several months, after receipt of information, in Peria Mannadha Gounder v. Marappa Gounder (1968 L.W.(Cri.)179). in that

case, learned Judge has also considered about the mandate prescribed under S.145(1) Cr.P.C. and the duty cast on the Executive Magistrate to

clearly exhibit his satisfaction on the basis of information laid before him about a dispute likely to cause the breach of the peace and stating his

grounds therefor before requiring parties concerned in such dispute, to attend his Court. In other words, learned Judge observed, that the

preliminary order should state clearly the reasons and grounds on which satisfactions was based to show that the Magistrate had applied his mind

in passing the preliminary order. The following observations need extraction:

In Anadi Lal Mukherjee and Others Vs. Sukh Chand Mandal and Others, a Division Bench held that it was necessary for making an order under

S.145 that the Magistrate should be satisfied that the time drawing up the proceeding that there is then existing a likelihood of breach of the peace

arising from the dispute between the parties with regard to the land in question. The making of an order, therefore, some months after the report on

which it was purported to be passed, cannot be supported. In that case, the report by the police in respect of the breach of the peace was made

on 18th January, 1926. The preliminary order was passed in Jury, 1926 about six months later. I respectfully agree with the view expressed by the

Divisional Bench.

As I have already stated, preliminary order was passed in the instant case on 8.10.1992 based on Crime No. 161 of 1991 dated 1.10.1991,

nearly a year after information was laid. It is not known whether any further report was called for by the Executive Magistrate to satisfy himself

about the likelihood of breach of the peace at or about the time when he chose to pass the impugned preliminary order.

As I have stated earlier, if the preliminary order could have been sustained, the position might have been different. On the facts available, I am of

the opinion that the principle enunciated by K.M. Natarajan, J. in Natesa Thevar''s case (1987 L.W.C 50) will stand attracted and hence

subsequent final order, will not have the effect of rendering the proceedings valid.

Mr. Balasubramanian, counsel for respondents (1 to 22) counsel, invited my attention to the observation of the Supreme Court in Jhummamal

alias Devandas Vs. State of Madhya Pradesh and Others, which reads as follows:

We fail to understand how the High Court in this case took advantage of the decision of this court in Ram Sumer''s case. The ratio of the said

decision is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject

matter. That does not mean that a concluded order under S.145, Cr.P.C. made by the Magistrate of competent jurisdiction should be set at naught

merely because the unsuccessful party has approached the civil court. An order made under S.145, Cr.P.C. deals only with the factum of

possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision

of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit.

He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the

Magistrate has reached.

He contended that the impugned order could still be sustained and it need not have to be set at naught merely because a civil suit is pending. If the

impugned order could have been sustained on factual and legal grounds, the position might have been different. To my mind, the impugned is a

non-est, for the reasons already stated. In the above case, the Supreme Court was explaining the law laid down by them in Ram Sumer Puri

Mahant Vs. State of U.P. and Others, and in that context, it observed that a concluded order under S.145, Cr.P.C. made by the Magistrate of

competent jurisdiction should not be set at naught merely because the unsuccessful party has approached the civil Court. The said principle cannot

be applied to the instant facts, which are totally different.

Looked at from any angle and every angle, the impugned order which cannot be sustained, shall stand quashed in the event of likelihood of

breach of the peace arising out of dispute between parties in relation to the property concerned, it will always be open to the Executive Magistrate

to satisfy himself about the present situation and take suitable steps to prevent such breach of the peach. In the event of doing so, the nature of civil

suit as well as the orders obtained by either party, either interim or final, may have to be within his vision. In cases of this nature, when civil litigation

is pending, if circumstances so warrant, it will be more appropriate to initiate action under S.107, Cr.P.C. All these are questions which J will have

to be decided by the learned Magistrate, who knows about his locality and the nature of action to be taken. Subject to these observations, this

Criminal Revision Case is allowed.