JAYALAKSHMI Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) Challenging the order passed by the 2nd respondent under Sec. 145 of Cr.P.C., in Na.Ka.A.2/4165/2017, dtd. 22/12/2021, this Writ Petition has been filed.

(2.) Heard the submissions of the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents 1 to 3.

(3.) On perusal of the order passed by the 2nd respondent, it reveals that pursuant to the letter sent by the 3rd respondent Police, he has passed the order preventing anyone from entering into the property, which is in dispute. It is relevant to note that only few people have been shown as 'A' party in the order and the rival party has not even arrayed as party. Any order under Sec. 145 Cr.P.C., is passed, the Sub Divisional Magistrate/Revenue Divisional Officer has to pass an order taking note of the statement and evidence of both sides. The preliminary order must indicate who was in possession of the disputed property or who is in possession, thereafter only, the subsequent order can be passed under Sec. 146 of Cr.P.C. Here, the impugned order is very cryptic, even without issuing notice and hearing the other side, the Sub Divisional Magistrate/Revenue Divisional Officer/3rd respondent passed an injunction order in general. As per Sec. 145 Cr.P.C., the learned Magistrate shall then, without, reference to the merits of the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-Sec. (1), in possession of the subject of dispute. No such exercise has been done by the Sub Divisional Magistrate/Revenue Divisional Officer/3rd respondent, which itself indicates that the order suffers from illegality and he has not applied his mind while passing the order.