LAWS(MAD)-2003-10-133

A BASKARA NARAYANAN Vs. SO MURUGESARN

Decided On October 22, 2003
A.BASKARA NARAYANAN Appellant
V/S
SO.MURUGESARN Respondents

JUDGEMENT

(1.) This revision has been filed against the final order passed by the Sub-Divisional Executive Magistrate cum Revenue Divisional Officer, Tirunelveli in A5/M.C. No. 1/ 2001, stating that the petitioner has no right whatsoever to put up a culvert and a road in S. N6.440/3 and 440/4 and use the same as his pathway.

(2.) On a perusal of the order impugned, I am of the view that it deserves to be necessarily set aside on a short point of law and hence, it may be not necessary to go into the details of the order. Suffice to state that on going through the entire records as well as the file, there appears to be no preliminary order at all passed under Section 145(1). Cr.P.C. In fact, a notice has been served on 20/2/2001, asking the petitioner to appear for the enquiry initiated under Section 145(1), Cr.P.C. The basic requirement to initiate such a proceeding is that there must be some information in relation to the presence of breach of peace, which information should be made known to the petitioner or the counter petitioner as the case may be and it is only thereafter, upon the Magistrate subjectively satisfying about the presence of breach of peace, shall initiate proceedings.

(3.) In the presence case on going through the notice, I do not see either of them, but surprisingly the learned Magistrate has conducted an enquiry and passed the impugned order. Here it would be pertinent to refer to the decision rendered by this Court in Kailasa Thevar and another v. Ramiah and 42 others, wherein His Lordship Aruna. chalam, J. has held there must be a preliminary order under Section 145(1). Cr.P.C. and that order must clearly state the reasons and grounds on which the satisfaction was based to show that the Magistrate had applied his mind in passing the preliminary order.