Muthukrishnan and another vs Station House Officer, Town Police Station, Karaikal and another

T.S. Arunachalam, J.—Petitioners have been shown as opposite party Nos. 2 and 3 in Order No. 38 of 1993 on the file of Sub-Divisional

Magistrate, Karaikal, while the second respondent has been shown as opposite party No. 1 in the same proceeding. First respondent, Station

House Officer, Town Police Station, Karaikal, has been shown as petitioner, who had chosen to initiate the impugned proceedings u/s 145,

Cr.P.C. Learned Executive Magistrate initiated proceedings u/s 145, Cr.P.C. by passing a preliminary order on 3-6-1993. Disputes between

parties relate to a temple land and the super-structure thereon.

In this petition preferred u/s 482, Cr.P.C. to call for the records and quash the pending proceeding, as not maintainable and an abuse of process

of Court, only one ground was urged by petitioner''s counsel. He submitted that after noting down the information received, learned Executive

Magistrate has stated in the preliminary order that he was satisfied that there was likelihood of breach of peace, but had nowhere stated, the

grounds of his satisfaction. In support of his contention, he referred to a judgment of this Court in Karthikeyam v. State, 1990 MLJ (Crl) 149.

On this ground of challenge, I have heard second respondent''s counsel. He was able to visualise the serious lacuna.

It is rather unfortunate that the Executive Magistrates, in spite of settled legal principles, quite often pass preliminary orders, which are not in

consonance with law. Lack of application of mind can be the only reason. Executive Magistrates must get themselves equipped with the latest

position of law while initiating proceedings u/s 145 Cr.P.C. or Section 107, Cr.P.C. In Karthikeyam v. State 1990 MLJ (Crl) 149, this Court has

observed that the twin requirements of satisfaction of the Magistrate and the grounds of satisfaction were different. If a Magistrate had stated that

he was satisfied from a police report or other information that breach of peace was likely to be caused, he was recording the fact of his

satisfaction, but not the grounds of his satisfaction. The order must indicate the grounds, for finding that there was likelihood of breach of peace.

Non-compliance with the provisions of Section 145(1) Cr.P.C. will certainly vitiate the preliminary order, as it will be one passed without

jurisdiction.

The law laid down in the aforestated case will squarely apply to the instant facts. On that sole ground, the pending proceeding cannot be

allowed to survive any longer. It shall stand quashed.

However, in the event of likelihood of existence of breach of peace due to disputes between the parties, it will always be open to the Sub-

Divisional Magistrate, Karaikal, to apply his mind to the facts available at present and if the circumstances so warrant, initiated fresh proceedings

u/s 145, Cr.P.C. after passing a legal and valid preliminary order.

Subject to the aforestated observation, this petition shall stand allowed.

Petition allowed.