RAISNI KARSAN GARVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) What is the extent of jurisdiction of an Executive Magistrate u/s. 145(1) of the Code of Criminal Procedure, 1973 (for short "the Code") is the short question, that is required to be answered, in this Special Criminal Application moved u/s. 482 of the Code and Article 227 of the Constitution of India.

(2.) For the purpose of dealing with the question in the context of the legal position, it would be appropriate in the first instance to setout the facts. The facts are so stated in two different stages out of which second stage would be relevant stage so far as the present application is concerned. First stage of the facts : Opponent no.2's application before the opponent no.3 - Executive Magistrate. On March 30, 1992 the opponent no.2 Mr. Amrutlal Ratanshi Patel moved an application u/s. 145 of the Code before the learned Executive Magistrate at Nakhtrana (Kutch) in respect of petrol pump styled as "R.K. Petroleum", located near village Manjal in the local jurisdiction of the learned Executive Magistrate, praying for immediate restoration of the possession of the said petrol pump from the present applicant - Raishi Karsan Garva and for obtaining an appropriate order restraining the applicant from disturbing the opponent no. 2's possession of the said petrol pump and thereby committing breach of peace. The allegations of facts made in the application, shortly stated, are: the opponent no. 2 - Amrutlal Ratanshi Patel has been carrying on business in the petrol pump in question of his ownership. The Indian Oil Corporation Limited approved retail outlet for distribution of diesel and petrol in favour of the present applicant Mr. Raishi. He had obtained required loan and installed a retail outlet near Anandsar on or about 30th May, 1987. However, as he was lacking both for financial and technical know how, he has let it out to one Ashokbhai Nanji Hadia and such an agreement of lease was executed in favour of one Mr. Bharat K. Joshi, tax consultant of Bhuj, Kutch. Said agreement came to be put to an end by force and the applicant Mr. Raishi got the possession of the said petrol pump from said Mr. Ashok Nanji Hadia. Thereafter the present applicant Mr. Raishi Karsan Garva contacted the present opponent no.2 Mr. Amrutlal Ratanshi Patel, the applicant of application before the Executive Magistrate, for running the petrol pump in question and he in the company of aforesaid tax consultant Mr; Bharat K. Joshi tempted him to enter into a lease deed dated 30/4/1988 for a period of 15 years and obtained financial benefit The rent which was fixed therein was thereafter increased by a second writing. Relying upon the applicant Mr. Raishi Karsan Garva, the opponent no.2 started running petrol pump in question managed by himself as well as his younger brother Mr. Chandulal Ratanshi Patel and other relatives who were attending to various books of accounts, bill books, cash memos and other documents as well as affairs of the petrol pump. Rent was increased by Rs.700/- per month as per the second agreement.

(3.) Inspite of the facts alleged as above the present applicant Mr. Raishi Karsan Garva, with the assistance of some head strong persons forcibly dispossessed the opponent no.2 by ousting his younger brother and by administering threats. It is in this fashion that the present opponent no.2 (applicant of the main application) came to be dispossessed of the petrol pump in question by the present applicant on 5th February, 1992. The opponent no.2 herein tried to persuade the present applicant and aforesaid tax consultant Mr. Bharat K. Joshi (opponent no.2 in the above application) for restoration of the possession of the petrol pump in question, but in vain. Thereafter on 27th February, 1992 the present applicant Mr. Raishi administered threats to the present opponent no.2 for leaving Kutch, resulting in apprehension of life and property in the mind of the opponent no.2 Mr. Amrutlal Ratanshi Patel. In this fashion the present applicant had forcibly taken possession of the assets worth Rs. 1.5 lacs to Rs.2.00 lacs belonging to the present opponent no.2. Under such circumstances there was every possibility of breach of public peace being committed by the present applicant. In order that should not happen and in order that the present opponent no.2 might not be involved in some offences wrongly, the present opponent no.2 gave application dated 5th March, 1992 to the D.S.P. Kutch. Setting out such facts and enclosing copies of the documents referred to in the application, present opponent no.2 made prayers as aforesaid in his main application. He also moved an application on the same day before the learned Executive Magistrate for interim mandatory injunction by way of preventive measure directing restoration of possession of the petrol pump in question in his favour.