KATANUR DODDAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The petitioner has prayed that the order d| 5-12-1977 passed by the Tahsidar Executive Magistrate, Shikaripur, in Case No.MAG.C.Mis. C.R.18 of 1977-78, appointing a receiver by exercising his powers under Sec. 146(1) CrlPC, 1973 (to be hereinafter referred to as the Code) be quashed. Sri K. T. Mohan, learned Advocate for the petitioner who is one of the parties before the Executive Magistrate, urged that the Executive Magistrate has passed an order said to be under S. 145(1) of the Code on 2-12-1977 and that order is p'atently illegal, and in view of that the Executive Magistrate did not get jurisdiction to make an enquiry as per the provisions of S.145 of the Code and as such he could not have passed the impugned order.

(2.) What is styled as preliminary order under S. 145(1) of the Code, is produced in this petition and is also available in the records maintained by the Tahsildar Executive Magistrate. All that it narrates is that the Sub-Inspector of police of the Shikaripur police station had registered a case under S. 145 of the Code and had reported that fact to him and, therefore, he called upon the petitioner and respondent-2 to appear before him on 3-12-1977 and produce before him all the records. It is plain that the so-called preliminary order is not in compliance with the provisions of S. 145(1) of the Code. As per S. 145(1) of the Code, it is the duty of the Executive Magistrate to consider the report of a police officer or other information available to him and be satisfied that a dispute likely to cause a breach of. the peace does exist concerning any land within his local jurisdiction, and thereafter state the grounds of his being so satisfied and require the parties concerned to appear before him either in person or through a lawyer on a specified date and time to put in written statements of their respective claims in regard to the fact of actual possession of the subject in dispute. Not even one of the ingredients of this provision has been complied with by the Executive Magistrate. The power under Sec. 146(1) of the Code viz., to attach the subject of dispute and to appoint a receiver can be exercised only after an Executive Magistrate has made a preliminary order as per Sub-sec. (1) of Sec. 145 of the Code. This presupposes that the preliminary order passed by a concerned Executive Magistrate is according to law. When it is not according to law, the Magistrate fails to get jurisdiction to hold an enquiry under Sec. 145 of the Code and as such will not have jurisdiction or power to pass an order under Sec. 146(1) of the Code.

(3.) In the result, the order impugned cannot be sustained and, hence, this petition is allowed, a,nd the proceedings before the Tahsildar Executive Magistrate, Shikaripur, in case No. MAG C.Mis. C.R. 18 of 1977-78, including the orders dated 2-12-1977 and 5-12-1977, are quashed.