S. Ramiah Thevar vs K. Manickam

Arunachalam, J.—Petitioner has been shown as counter-petitioner in M.C. No. 11/90 on the file of the Sub Divisional Magistrate,

Periyakulam, and respondent Manickam has been shown as petitioner in the same case. Learned Sub Divisional Magistrate, Periyakulam, initiated

action under S. 145 of the Code of Criminal Procedure on 21.3.1990 and caused service of the order passed by him on both the parties.

In this petition preferred under S.482 of the Code of Criminal Procedure, to call for the records and quash all further proceedings in M.C. No.

11/90 aforestated, as not maintainable and an abuse of process of court, petitioner''s counsel contended that in the impugned order, learned

Executive Magistrate has not stated his grounds of satisfaction and further as if it was a final order, had restrained the petitioner herein, from in any

way interfering with the possession and enjoyment of the scheduled property by the respondent. Another ground urged was that the Executive

Magistrate had directed both parties of file written statements or evidence by putting in affidavits in respect of their, claims, which again is contrary

to the provisions of S. 145(1), Cr.P.C.

On those grounds I have heard Mr. T. Srinivasa Raghavan, learned counsel appearing on behalf of the respondent.

To appreciate the contentions of the petitioner''s counsel, it will be necessary to extract the impugned order passed by the Magistrate.

Whereas it has been brought to my notice by reliable information that there is a dispute between the petitioner and the counter petitioner as to the

possession and enjoyment of the schedule of properties mentioned hereunder, I am personally satisfied that there is a dispute likely to cause breach

of peace in case urgent steps are not taken to prevent such breach.

I, Thiru P. Raghupathy, B.A., Sub Divisional Magistrate, Periyakulam, hereby order restraining the counter petitioner from in any way interfering

with the possession and enjoyment of the petitioner''s property as scheduled below and direct the petitioner and the counter petitioner to appear

before me on 9.4.90 at 3 p.m. to establish their respective claims through written statement or evidence by putting in affidavits as they rely upon in

support of their claims. If any one of the parties does not appear on the said date, orders will be passed exparte.

Learned Executive Magistrate, after stating that it had been brought to his notice by reliable information that there was a dispute between the

petitioner and the counter petitioner as to possession and enjoyment of the property scheduled, had stated that he was personally satisfied that

there was a dispute likely to cause breach of peace. Nowhere he has stated the grounds of satisfaction. Under S. 145(1) , Cr.P.C. which provides

the foundation for exercise of jurisdiction of Executive Magistrate, the concerned Magistrate, after arriving at his satisfaction, should make an order

in writing stating the grounds for his being so satisfied. That apparently has not been done in the instant case. It is still more amazing that the

Executive Magistrate has restrained one party from in any way interfering with the possession and enjoyment of the property scheduled by the

other party. This portion of the order indicates that, in fact, a final order has been passed, without affording any opportunity to the petitioner herein,

to put forth his case, regarding the fact of actual possession by him, of the subject of dispute.

The impugned order appears to be a final order passed under S. 145 (4) of the Code. Though under the 1898 Criminal Procedure Code,

evidence through affidavits was permissible, in the 1974 Code, evidence through affidavits was erased from the section and instead, parties were

allowed to produce oral and documentary evidence. The object apparently was evidence through affidavits was erased from the section and

instant, parties were allowed to produce oral and documentary evidence. The object apparently was evidence through affidavits was not open to

challenge by cross-examination. Learned Executive Magistrate has no acquitted himself with the procedure prescribed u/s 145(1) Cr.P.C.

The impugned order cannot be sustained on any valid ground. It shall stand quashed. The petition is allowed.