SELVAKUMAR Vs. SUB DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) THE petitioner has come forward with this Criminal Revision Case as against the final order dated 10.05.2012 passed by the first respondent/Revenue Divisional Officer in the proceedings initiated by him under Section 145 of Criminal Procedure Code (in short Cr.P.C). In and by the said order dated 10.05.2012, the first respondent directed the authorities concerned to take appropriate action to cancel the patta issued in favour of the petitioner.

(2.) THE petitioner challenges the impugned order dated 10.05.2012 of the first respondent mainly on the ground that the order dated 10.05.2012 was passed in violation of Section 145 (i) of Cr.P.C. inasmuch as there was no preliminary order passed by the first respondent before resorting to pass a final order. According to the petitioner, mere issuance of a summon before passing the final order cannot be deemed to be a preliminary order and therefore the impugned order cannot be sustained. Further, if there is an apprehension as to breach of law and order and a reference is made by the Police personnel, the first respondent ought to have taken an independent view of the situation and arrived at a subjective satisfaction to conclude that there exist a ground for initiation of proceedings under Section 145 of Cr.P.C. and only thereafter, the first respondent ought to have passed a preliminary order and to serve such preliminary order on the petitioner in accordance with law. In the absence of passing of such a preliminary order, the impugned final order passed by the first respondent cannot be legally sustainable, even though the petitioner participated in the proceedings. In support of this contention, the learned counsel for the petitioner relied on the decision of this Court reported in (Indira and others vs. Dr. Vasantha and others) (1991) Crl.Law Journal 1798 to contend that before passing a preliminary order as contemplated under Section 145 (1) of Cr.P.C., the first respondent is estopped from passing a final order. In other words, before coming to a final conclusion, the first respondent ought to have passed a preliminary order and thereafter issued summons in accordance with law as held by this Court in the decision mentioned supra.

(3.) ON the other hand, the learned counsel appearing for the respondents 3, 4 and 5 would contend that the subject matter of the lands were originally allotted in favour of 224 Burma Repatriates and they were allotted small extent of lands in bits and pieces in order to rehabilitate them. After such allotment, the occupants have shifted from the lands allotted to them temporarily in search of employment and to eke out their livelihood. Taking advantage of their temporary absence, the petitioner, who is the son of the original owner, from whom the lands have been acquired and allotted to the repatriates, has created false and forged documents to make a claim over the lands in question, after lapse of several years. The petitioner had even sold a portion of the property to some third persons, which under law is punishable. The lands were originally acquired from the owner of the land by resorting to private negotiations and therefore, the petitioner is estopped from making any claim over the same. After such private negotiations, sale deeds were duly executed in favour of the Burma repatriates and in fact necessary orders were passed granting exemption from the Stamp Act to affix stamp on such sale deeds. Under those circumstances, in order to save their land, the repatriates have now formed an association and sought to retrieve the land which has been surreptitiously sold by the petitioner by forging false and fabricated documents. In fact, the civil suit has been filed and pending suit, injunction was sought for. Pending suit, since the purchaser attempted to change the patta, in respect of some of the portion of the land which were clandestinely sold, the descendants of the original repatriates, who were still in occupation of some of the lands, have given complaint to the Inspector of Police, Ponneri complaining attempts to grab the properties under their occupation forcefully. On the basis of such complaint, enquiry was conducted and a detailed report was given to the first respondent with a request to initiate appropriate proceedings under Section 145 of Cr.P.C. The first respondent, acting on the basis of such report given by the Inspector of Police, issued summons to both the parties in which the petitioner and the respondents 3, 4 and 5 have also participated. After conducting necessary enquiry, the first respondent passed the impugned final order. Therefore, it is futile on the part of the petitioner to contend that the impugned order was passed without application of mind or without jurisdiction. The civil suit filed by the private respondents is not a bar for the first respondent to initiate the proceedings under Section 145 of Cr.P.C. when there is breach of law and order problem. Even other wise, by the impugned final order, the first respondent only issued appropriate directions to the concerned authorities to take action for cancellation of the patta issued in favour of the petitioner in accordance with law.