KAILASA THEVAR Vs. RAMIAH

JUDGEMENT

(1.) PETITIONERS were initially shown as members Nos. 1 and 14 of 'A' Party in M.C. No. 75 of 1992 then pending on the file of Executive Sub -Divisional Magistrate, Paramakudi. Respondents 1 to 22 were arrayed as members of 'B' party in the same proceeding, while Respondents 23 to 43 also formed part of 'A' party till about a few days before the final order was passed. Learned Magistrate passed the preliminary order under S.145(1) Cr.P.C. on 8.10.1992 on the basis of Valinokkam Police Station Crime No. 161 of 1991 dated 1.10.1991. The preliminary order reads as hereunder:

(2.) A careful perusal of the preliminary order will show, that Para 1 relates to information laid before the Executive Magistrate. The second paragraph merely states that after careful examination of this case an order had been passed directing both 'A' and 'B' parties to maintain status quo over the disputed property, till disposal of this case. Last paragraph only fixes the date and time for appearance of the parties concerned. Nowhere in paragraph 2 of the preliminary order, it is evident, that the Executive Magistrate has assessed the information laid before him, which forms part of paragraph 1 of the order and the basis on which he had arrived at his objective satisfaction. Even if we take it that the Executive Magistrate had carefully examined the information, his subjective satisfaction on the information placed before him must be made evident in the preliminary order, for under S.145(1) Cr.P.C. the relevance of the following words had been the subject -matter of catena of decisions:

(3.) HOWEVER , one more question of utmost importance has been submitted for my consideration by Mr. A. Packiaraj, petitioner's counsel. He pointed out a ground, specifically taken in the memorandum, that in spite of pleading for an opportunity to adduce oral evidence that had not been afforded. He further brought to my notice, that members of 'B' party on whose behalf an affidavit has been sworn to, to vacate the interim order of stay ordered by this Court, does not anywhere controvert the ground that an opportunity to adduce oral evidence was prayed for by 'A' party, but not afforded by the Executive Magistrate, though certain other facets of the affidavit of the petitioners, have been denied in the affidavit sworn to on behalf of 'B' party members. Even otherwise, the impugned order itself clearly shows that no oral evidence was brought on record. If no oral evidence was forthcoming will be reasonable to expect the impugned order to state that in spite of opportunities afforded, no oral evidence was forthcoming.