Peria Mannadha Goundar and Others vs Marappa Goundar

Krishnaswamy Reddy, J.—The petitioners have filed this petition for quashing the proceedings In M, C. No. 117 of 1967 on the file of the

Sub-Divisional Magistrate (J) Sankari for the reasons mentioned in the affidavit filed by one of the petitioners. The facts which arise on this

application are these:

The respondent moved the Court of the Sub-Divisional Magistrate, Ex Officio, Sankari, by a petition dated 30-8-1966 u/s 145, Criminal P. C.

claiming that certain properties described in the petition belonged to him, that he was in possession of the lands and that the petitioners herein

encroached upon his possession.

In pursuance of the said petition, the learned Magistrate called for a report from the police and the Sub-Inspector of Police, Sankari, submitted

a report on 7-10-1966.

The learned First Class Magistrate, Sankari, passed a preliminary order u/s 145 (1), Criminal P. C. and issued notice to both the petitioners and

the respondent on 10-4-1967, six months after the report was placed before the Court by the police regarding the likelihood of breach of the

peace.

Thereupon, the petitioners filed a petition before the Sub-Divisional Magistrate, Sankari (to whose Court the matter has been transferred) in M.

P. 414 of 1967, praying that the proceedings may be dropped in view of the fact that the learned Magistrate who issued a preliminary order u/s

145 (1) Criminal P. C. had not stated that he was satisfied regarding the likelihood of breach of the peace. The learned Sub-Divisional Magistrate

dismissed the application filed by the petitioners and issued a fresh preliminary order on 12-9-1967 calling upon both the parties to put in written

statement of their respective claims. It is against this order, this petition has been filed.

It is contended by the learned counsel for the petitioners that the second preliminary order passed by the Sub-Divisional Magistrate, Sankari, is

vitiated as he has not stated the grounds for his satisfaction as required u/s 145 (1), Cri. P. C. and that the said provision is mandatory and further

contended that the preliminary order passed by the Sub-Divisional Magistrate on 12-9-1967, on the report submitted by the police to the Ex

Officio First Class Magistrate, Sankari was nearly about one year before the order was passed and that it cannot be said from the order that the

learned Magistrate was satisfied that breach of the peace existed on the date of passing of the preliminary order.

To appreciate both the points raised by the learned counsel, it may be necessary to refer to Section 145 (1), Criminal P. C. which is as follows:-

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Whenever a District Magistrate. Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that

a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his

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, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as

respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents or to adduce, by putting in

affidavits, the evidence of such persons, as they rely upon in support of such claims.

It is, therefore, necessary u/s 145 (1), Criminal P. C., that 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 appears to be mandatory. The words ""shall make an order in writing stating the grounds of his

being so satisfied"" would clearly indicate that the order must be in writing and the grounds for satisfaction also must be stated. Unless the grounds

are stated in the order itself, it will be difficult to test the correctness or otherwise of the order passed by the Magistrate. So, 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.

In Nagammal v. Mani, 1966 MLW Cri 101, Anantanarayanan Offg. C. J. as he then was, 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 u/s 145 (1)

Criminal P. C. The learned Judge further observed that Magistrate should not take action merely on a police report. With respect, I agree with the

view expressed in this decision.

In Khudiram Mandal Vs. Jitendra Nath and Another, . a Division Bench held as follows :--

Where the preliminary order u/s 145 (4) Criminal P. C. does not state the grounds of satisfaction as to the existence of a dispute likely to cause a

breach of the peace the order is undoubtedly a defective order and if challenged in proper time, i.e., about the time when written statements are

required to be filed or evidence led, it will be corrected or set aside.

This decision takes the view that the validity of the final order u/s 145 Criminal P. C. could not be set aside because of omission to state the

grounds in the preliminary order as such omission will be only an irregularity. But from this decision, it is clear that if an objection is taken as in the

instant case, at the earliest point of time, the preliminary order can be quashed.

In Mettupalli China Kondappa (died) by L. Rs. Chinna Venkatareddy and Others Vs. Ramsetty Ram Row and Another, the question that

arose for consideration was whether the Magistrate acted without jurisdiction in passing the final order u/s 145, Criminal P. C. even though there

was no preliminary order passed u/s 145 (1) Criminal P. C. It was held that it was well settled that if there was no preliminary order made at all,

the subsequent proceedings culminating in the final order are vitiated and that on the other hand, if there is a preliminary order, however defective it

may be, the defect would not be fatal unless it has resulted in prejudice. As observed already, this decision deals with a case where the final orders

u/s 145, Criminal P. C. were passed. That was not a case where the objection was taken at the earliest stage, before the final orders were passed,

The learned counsel for the respondent relied upon a decision in Kamal Kutti v. U. Raja Valia Raja, 23 MLJ 499. It was held in that decision

that an omission to record grounds in the preliminary order is not a defect of jurisdiction. That decision mainly proceeds on the footing that the

revision itself did not lie against the order passed u/s 145, Criminal P. C. The decision was rendered before the amendment of Section 145, Clause

(3), when revision would not lie against the order u/s 145, Criminal P. C. Further, the petition in that case was filed to quash the preliminary order,

after the final orders u/s 145 (4) Criminal P, C, were passed. This decision is no longer good law after the amendment of Section 435 (3), Criminal

P. C, by its omission in 1923,

Section 145 (1), Criminal P. C. makes it also clear that the Magistrate passing a preliminary order must be satisfied that the likelihood of the

breach of the peace exists on the date of the preliminary order. If the preliminary order is based upon an earlier report, long before the preliminary

order was passed and without any further fresh information received in respect of the dispute, it cannot be said that the Magistrate is satisfied that

the likelihood of the breach of peace existed on the date of the preliminary order.

The preliminary order passed by the Sub-Divisional Magistrate is as follows:--

Whereas information has been laid before the Revenue Divisional Officer by the Sub-Inspector of Police, Sankari, that a dispute likely to cause

imminent breach of peace exists concerning the land in S. Nos. 186/5, 186/11, 186/12 and 186/14, of Chinnagoundanur village, Sankari taluk,

which is owned by the A party within the local limits of this Court''s jurisdiction by reason of both A and B parties claiming the ownership of the

lands ; I Sri T. Balakrishnan B. A. B. L., Sub-Divisional Magistrate, Sankari after satisfying myself that there exists prima facie dispute regarding

Immovable properties between the parties which is likely to cause breach of the peace do hereby require you both A and B parties u/s 145 (1),

Criminal P. C. to attend my Court in person on...9-1967 at 11 a. m. and put in written statement of your respective claims as respects the actual

right of ownership and of the land in question.

This order shows that the Sub-Divisional Magistrate relied upon the report submitted by the Inspector of Police before the Revenue Divisional

Officer for satisfying that a breach of the peace existed on the date of passing the preliminary order. The Sub-Divisional Magistrate himself did not

call for a report from the police at the time of passing the order though he found that the preliminary order passed by the Ex Officio First Class

Magistrate was defective. He again had fallen into an error, in perusing the report submitted by the police officer on 7-10-1966. The learned Sub-

Divisional Magistrate has not even stated that he perused the report and was satisfied with the existence of breach of peace. It is significant to note

that the preliminary order by the Sub-Divisional Magistrate was passed on 12-9-1967, nearly about one year after the police report was

submitted. The preliminary order does not say that he had any further information subsequent to the report submitted by the police that the

likelihood of a breach of peace continued and on the date of the preliminary order the dispute existed. A preliminary order passed long after the

information the Magistrate had in respect of the breach of the peace cannot be sustained unless the Magistrate was satisfied from any further

information or enquiry that a breach of the peace existed on the date of the preliminary order,

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

u/s 145 that the Magistrate should be satisfied at the time of drawing up the proceedings that there is then existing a likelihood of breach of the

peace arising from the disputes 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 18-1-1926. The preliminary order was passed in July 1926 about six months later. I respectfully, agree with the view expressed by

the Division Bench.

The result is that the preliminary order passed by the Sub-Divisional Magis trate has to be quashed and accordingly it is quashed. The petition

is allowed. If necessary, the learned Sub-Divisional Magistrate can go into the matter again and after enquiry, if he is satisfied that a likelihood of

the breach of the peace exists in respect of the dispute over the land, he can take appropriate proceedings.