Samikannu and 21 others vs State and another

Janarthanam, J.—The Inspector of Police, Sivaganga Taluk laid an information in crime No. 220/89 of Sivaganga Taluk Police Station, dated 22.7.1989 before the Executive Sub Divisional Magistrate, and Revenue Divisional Officer, Sivaganga alleging that there was dispute between A and B party - A party consisting of 21 persons and B party consisting of 22 persons - regarding possession, enjoyment and use of water for irrigation purpose in the well situate in S. No. 3/2 of P. Udayarendal group, Sivaganga Taluk, which was likely to disturb the peace and public tranquillity in the village, which was taken on file as M.C. No. 94/89.

After deriving subjective satisfaction as to the existence of a dispute, as referred to by the Inspector of Police, likely to result in breach of peace in the village, learned Executive Magistrate passed an order requiring A and B party - counter Petitioners to attend before her in person or pleader at 11 A.M. on 28.8.1989 at the office of the Executive Sub Divisional Magistrate and Revenue Divisional Officer, Sivaganga and put in written statements of their respective claims in regard to the disputed well in the aforesaid survey number. She also passed a further order directing the Inspector of Police, Sivaganga Taluk not to allow both the parties to enter upon the land in dispute (i.e., Land in S.N.3/2 of P. Udayarendal Group, Sivaganga Taluk) pending inquiry u/s 145 of the Code of Criminal Procedure, 1973 (for short ''the Code'').

On receipt of process, B party-counter Petitioners came forward with the present action by invoking the inherent jurisdiction of this Court u/s 482 of the Code to quash the proceedings initiated against them, impleading the Inspector of Police, Sivaganga Taluk, Sivaganga as the sole Respondent.

Subsequently, one of the A party counter Petitioners, namely, M. Swaminathan got himself impleaded as a party-2nd Respondent as per order of this Court dated 22.6.1990 in Crl.M.P. No. 8703of 1990.

Learned Counsel for the Petitioners, relying upon the decision in John Palanisamy v. State by Inspector of Police (1980 LW Cri 199), strenuously contended that passing of an order u/s 146, even before making an inquiry u/s 145, is not tenable as being bad in law and therefore that portion of the order of learned Executive Magistrate as respects the attachment must have to be set aside and the inquiry u/s 145 of the Code must proceed to its logical conclusion in the manner contemplated therein.

Learned Additional Public Prosecutor would submit that the impugned order and the decision relied upon by the learned Counsel for the Petitioners, if read with care, caution and circumspection, what emerges is that the impugned order is a tenable one, apparently, falling in line with the decision, on which implicit reliance had been placed by learned Counsel for the Petitioners.

Learned Counsel appearing for the second Respondent would share the opinion expressed by learned Additional Public Prosecutor.

No doubt the fag end portion of the impugned order directing the Inspector of Police, Sivaganga Taluk-Respondent 1 herein, not to allow both the parties to enter upon the land in dispute pending inquiry u/s 145 is one apparently passed u/s 146(1) of the Code, although the said order did not specifically state the provision under which the same had been passed. The order that was so passed will have its life, pending inquiry u/s 145 of the code and not beyond the termination of the proceedings u/s 145 thereof. Such an order had apparently been passed taking into consideration the emergency situation prevailing in the village likely to result in breach of peace as a consequence of both the parties fighting with each other in a scramble for possession, enjoyment and use of water for irrigation if the disputed well situate in the land in S. No. 3/2 of P. Udayarendal Group, Sivaganga Taluk.

The moot question that arises for consideration is as to whether such an order is bad in law.

To label such an order as being bad in law, learned Counsel for the Petitioners relied upon the case of John Palanisamy (supra). For understanding the implications of the Principles evolved in the said decision, it is but necessary to refer to, in a simple fashion, the facts of that case.

In that case, Sub Divisional Magistrate passed on 14.4.1988 two orders, one is u/s 145 of the Code in which it is stated that it has been reported to him that there was likelihood of breach of peace on account of rival claims of A and B parties in respect of the building bearing door No. 8, Ward No. VI Sathyamangalam Main Road, Sirumugai, being satisfied of such likelihood, he has directed both the Petitioners and the counter Petitioners to appear before him on 25.4.1988 at 11 a.m. for an enquiry u/s 145 of the code. On the same day he passed an order u/s 146 of the code in which he has referred to the order passed u/s 145. Then he proceeded to state that he considered the case as one of the emergency and that he was unable to satisfy himself as to which of the said parties was in possession of the disputed properties. Therefore, he authorised the Inspector of Police, Mettupalayam circle to attach the disputed property and to get possession thereof until a decree of order or competent court determining the rights of the parties with regard to entitlement to possession has been obtained.

After stating the facts, learned Judge, who decided the case, proceeded to consider three situations contemplated by Section 146 of the Code, which are reflected in paragraphs 3 and 4 as follows:

Section 146, Crl. P.C. contemplates three situations....

one of emergency at time after the order under Sub-clause (1) of Section 145(2) the Magistrate deciding that none of the parties was in possession as referred to u/s 145; and (3) the Magistrate being unable to satisfy himself as to which of the party was in possession.

It can be seen from the above that he can pass an order u/s 146, Code of Criminal Procedure either before an enquiry, by himself u/s 145 if the matter is one of emergency, or after the enquiry in cases Nos. 2 and 3. In this case, he has called the parties for an enquiry, and that order was passed on 14.4.1988. It was open to him to pass an order u/s 146, (Cl. (1). In such a case, the order of attachment would be in force till the end of his enquiry, unless he renews it considering the case to be falling under C1.2 or 3 after his enquiry.

In the present case, he has directed the property to be under attachment until the order of the competent court, even before making the enquiry he is statutorily enjoined to do so. This is a case of evasion of duty. Further, in his order he has stated that the case was one of emergency and also one in which he was unable to satisfy himself as to which of the said parties was in possession of the same. It is wondered how without hearing the parties, he can satisfy himself as to which of the party was in possession of the same. This is an order which is "passed without application of mind and in disregard of the due process of law. The order is liable to be set aside.

From what has been stated above by learned Judge, it is thus clear that in case of emergency, learned Executive Magistrate, is competent to pass an order under/S. 146 of the Code even before an inquiry u/s 145 thereof and only in the case where none of the parties was in possession, as referred to u/s 145 and where the Magistrate was unable to satisfy himself as to which of the party was in possession, he is injuncted to pass an order before the commencement of the inquiry and even the order that is passed in case of emergency u/s 146 cannot enure beyond the period of termination of inquiry u/s 145 of the Code.

In the instant case, from a perusal of the impugned order, it is crystal clear that the order u/s 146 had been impelled to be passed, as a consequence of an emergency situation before the commencement of the inquiry u/s 145 and that too that the order so passed was to enure pending inquiry u/s 145 of Code. In such state of affairs the impugned order that had been passed by learned Executive Magistrate cannot at all be stated to be bad in law., as contended by learned Counsel for the petitioners.

As such, the petition deserves to be dismissed and it is accordingly dismissed. Learned Executive Magistrate is directed to further proceed with the inquiry according to the procedure established by law.