R. Thiagarajan vs K. Angamuthu

Karpagavinayagam, J.

Crl.RC. No. 5 of 1996.

Criminal Revision Case No. 5 of 1996 has been filed by A party/petitioner against the proceedings initiated in M.C. No. 5 of 1995, on the file of

the Sub Divisional Magistrate and Revenue Divisional Officer, Erode in which both parties, viz., A and B were directed to attend his office on 27-

12-1995 at 5.00 P.M. A party- Petitioner states that the property is comprised in old Door No. 15, new door No. 25, Ottukkare Chinnaya

Counder Street, Erode. There is a dispute between A and B parties, with reference to which both parties have filed a complaint.

Crl.RC. No. 21 of 1996

The above Criminal Revision case has been filed by a Party Petitioner against the order, dated 27.12.1995 passed in M.C. No. 5 of 1995 on

the file of the Sub Divisional Magistrate and Revenue Divisional Office, Erode, directing the officer in charge of Erode Town Village Administrative

Officer, Erode Town to attach the disputed properties and take and keep possession thereof and to hold the same under attachment till the decree

of order of a competent court, determining the rights of the parties or the claim to possession shall be obtained.

To-day in Criminal Revision Case No. 5 of 1996, I have considered the validity and legality of the proceedings impugned in the case viz., M.C.

No. 5 of 1995, dated 24.12.1995 and I have come to the conclusion that it is illegal, as the relevant mandatory against each other Both cases have

been registered by the Police in Crime Nos. 1023 of 1995 and 82 of 1995. in the mean time, the Petitioner has received a summon purported to

be issued u/s 145 of the Code of Criminal Procedure in M.C. No. 5 of 1995-A3, dated 24-12-1995 from the Sub Divisional Magistrate and

Revenue Divisional Officer, Erode. The said order directing the parties to attend to office for an enquiry u/s 145 of the Code of Criminal

Procedure is sought to be challenged on the simple ground that the learned Sub Divisional Magistrate did not comply with the mandatory

provisions as contemplated u/s 145(1) of the Code of Criminal Procedure and as per the dictum laid down by this Court. While invoking the

provisions of Section 145(1) of the Code of Criminal Procedure, the learned Sub Divisional Magistrate has to pass a preliminary order under the

said section and then fix the enqiry. According to learned Counsel for the revision Petitioner, the impugned order dated 24-12-1995 purported to

have been passed u/s 145(1) of the Criminal Procedure code does not fulfill the conditions as contemplated under the said section. According to

Section 145(1) of the Code of Criminal Procedure there must be grounds of satisfaction expressed in clear and unequivocal terms in the order,

intimating the rival parties that there is a dispute likely to cause a breach of the peace. A careful perusal of the impugned order does not show the

grounds of satisfaction.

With regard to this particular aspect, I heard Mr. R. Sivakumar learned Counsel appearing for the Respondent I find much force in the

submissions made by learned Counsel for the Petitioner Time and again courts have held that the enquiry u/s 145 of the Code of Criminal

Procedure should be initiated only when the mandatory provisions of Section 145(1) of the Code of Criminal Procedure has been complied with,

by passing a preliminary order, giving out all the necessary details and reflecting the grounds of satisfaction arrived at by the Magistrate, otherwise,

the entire proceedings would be illegal. On this sole ground, since I feel that the impugned order has been passed by not complying with the

relevant mandatory provisions of the Code of Criminal Procedure, the same is liable to be set aside as illegal. Accordingly, Criminal Revision Case

No. 5 of 1996 shall stand allowed. There will be no order as to costs.

CRL. RC. No. 21 of 1996:

The above criminal Revision case has been filed by A party Petitioner against the order, dated 27-12-1995 passed in M.C. No. 5 of 1995 on

the file of the Sub Divisional Magistrate and Revenue Divisional Officer, Erode, directing the officer incharge of Erode town Village Administrative

Officer, Erode Town to attach the disputed properties and take and keep possession thereof and to hold the same under attachment till the decree

of order of competent court, determining the rights of the parties or the claim to possession shall be obtained.

To-day in Criminal Revision Case No. 5 of 1996, I have considered the validity and legality of the proceedings impugned in the case viz., M.C.

No. 5 of 1995, dated 24-12-1995 and I have come to the conclusion that it is illegal, as the relevant mandate provisions of the Code of Criminal

Procedure have not been followed by the learned Sub Divisional Magistrate and Revenue Divisional Officer, Erode. The main ground challenging

the legality are correctness of the order impugned in this Criminal Revision Case is that the learned Sub Divisional Magistrate, Erode has passed

the order, dated 27-12-1985 without conducting any enquiry, as contemplated under the relevant provisions of the code of Criminal Procedure.

Moreover as per Section 146(1) of the Code of Criminal Procedure, only if the Magistrate at any time after making the order under Sub-section

(1) of Section 145 of the Code of Criminal Procedure considers the case to be one of emergency, or if he decides that none of the parties was

then in such possession as per Section 145 of the Code of Criminal Procedure, he has got powers to order Attachment of the property but in this

Criminal Revision Case, without following the mandatory provisions of Section 146(1) of the Code of Criminal Procedure the learned Sub

Divisional Magistrate and Revenue Divisional Officer, Erode has chosen to pass the impugned order, directing the Village Administrative Officer,

Erode to pass an order of attachment. Therefore, in view of the said ground, the order impugned in this criminal Revision case is illegal and the

same is liable to be set aside. Further, the reasoning given by me in Crl.R.C. No. 5 of 1996 also applies to this case.

For the reasons stated above, Crl.R.C. No. 21 of 1996 is also allowed. The order impugned in this Crl.R.C. No. 21 of 1996 is set aside.

However, there will be no order as to costs.