S.K. Jaganathan and 8 others vs State and 11 others

Pratap Singh, J.—Counter petitioners 1 to 9 of A-Party in M.C.No.5 of 1991 on the file of Sub-Divisional Magistrate and Revenue Divisional Officer, Madurai have filed this petition under S.482 of Cr.P.C. praying to call for the records in the aforesaid M.C.No.5 of 1991 and quash the same.

In the impugned order, the Sub-Divisional Magistrate and Revenue Divisional Officer, Madurai has stated that written complaint has been laid before him by the Inspector of Police, ''C'' Town East, Madurai under S.147 Cr.P.C. in Cr.No.1515 of 1991 dated 13.7.91 stating that there is a dispute between the above mentioned A & B Parties over the possession of building and other activities of Sourashtra High School Managing Council in 110 Kamarajar Salai, Madurai. The Inspector of Police has also informed that there is likelihood of breach of peace affecting public peace and tranquility for the reasons thereof and hence it is expedient to promulgate order under S.145, Cr.P.C. in the interest of public peace and tranquility. The Sub-Divisional Magistrate has further stated in his order that he has applied his mind on the report of the Inspector of Police, ''C'' Town East, Madurai and his confidential enquiry revealed that there is very possibility of breach of peace if it is allowed to continue. The Sub-Divisional Magistrate has further stated that under his inherent powers by virtue of S.145(1) of Cr.P.C. he is restraining both A & B parties from entering into the disputed building and until the possession of the said council building is decided by the competent court and requires both of the parties to put their written statements with the documents in support of the claim under S.145(1), Cr.P.C. regarding the claim of actual possession of the disputed property either in person or through a pleader on 22.7.1991 at 4.00 p.m.

Mr. K.V. Sridharan the learned counsel for the petitioner would contend that the order passed by the Sub-Divisional Magistrate is liable to be quashed on the following grounds:

(1) The Sub-Divisional Magistrate has restrained both the parties from entering into the disputed building until possession of the said building is decided by the competent court and that the Sub-Divisional Magistrate is not competent to pass such an order under S.145(1), Cr.P.C. on that ground alone it is vitiated.

(2) The Sub-Divisional Magistrate has not given the reasons for his satisfaction that there is every possibility of breach of peace and tranquility.

Per contra, Mr. P. Jyothimani, the learned counsel appearing for the counter petitioners of ''B'' party would contend that counter petitioners of ''B'' party are the duly elected office bearers who are entitled to manage the affairs of the Sowrashtra High School Managing council and that they are in actual possession of the property.

I shall first deal with the first contention put forth by Mr. K.V. Sridharan, He relied upon the decision reported in Karthikeyan and six others v. State 1990 L.W. 49 : 1989 L.W.(Crl.) 44. In the said ruling my learned brother Justice T.S. Arunachalam has referred to the various rulings of this High Court and has finally held that such an order under S.145(1) Cr.P.C. directing both parties not to enter the premises is a serious infirmity sufficient to vitiate the preliminary order in the impugned proceedings. In paras 18 and 19 Justice Arunachalam has referred to the rulings rendered by Justice Maheswaran and Justice P.K. Sethuraman and has stated as follows:

The legality of the preliminary order, restraining both the parties from entering into the property till the petition was decided according to law by the Magistrate, was considered b Crl.M.P. No. this court in Crl.M.P.No. 1093 of 1987 and by an order dated 10.3.1987, Maheswaran, J. held that restraining both the petitioner and the counter petitioner from entering into the property in question was not warranted by the provision of S.145(1) of the Crl. P.C. The learned Judge has also pointed out that the Magistrate had to pass an order if he was satisfied on a report of a police officer stating the ground of his being so satisfied and there was no provision in S.145(1) of the Crl. P.C. empowering the Executive Magistrate to restrain both the parties from entering into the said property.

P.K. Sethuraman, J. in Janaki Ramachandran''s case has referred to the view expressed by Maheswaran, J. on aspect of the case.

The learned Judge has also referred to the ruling of Justice Janarthanam reported in Venkatakrishnan and others v. State of Tamil Nadu 1989 I Crimes 236 in which Justice Janarthanam has held that the order passed by the Magistrate prohibiting both the parties from entering into the property in dispute, was totally without jurisdiction, calling for the setting aside of such an order. Finally the learned Judge has stated as follows:

This infirmity of restraining both the parties from entering into subject matter of the dispute is a serious infirmity sufficient to vitiate the preliminary order in the impugned proceedings.

I am in total agreement with the view expressed by Justice Arunachalam.

A reading of S.145(1), Cr.P.C. itself would show that such an order is not at all warranted by provisions of S.145(1) 1, Cr.P.C. I am not able to find any answer from the learned counsel appearing for the counter petitioner of ''B'' party. On this single ground alone the impugned order by the Sub-Divisional Magistrate and. Revenue Divisional Officer is liable to be quashed.

In view of the above, I don''t propose to enter into the second ground put forth by Mr. K.V. Sridharan since it is unnecessarily in this case. Mr. Jyothimani the learned counsel for the counter petitioners of ''B'' party states that if this preliminary order is quashed, then there is every possibility of both the parties fighting with each other in a scramble for possession and there is every possibility of breach of peace. If such a situation exists, warranting taking of proceedings under S.145(1), Crl.P.C, the Sub Divisional Magistrate and R.D.O, Madurai, is at liberty to pass orders in accordance with law, in the light of the rulings of this High Court.

With this observation, this petition is allowed and the proceedings in M.C. No. 5/91 on the file of the Sub Divisional Magistrate and Revenue Divisional Officer, Madurai is hereby quashed.