N PONNUMUTHU NADAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) "A" party counter petitioners in M.C.No. 30 of 1993 on the file of the Revenue Divisional Officer and Sub-Divisional Magistrate, Nagercoil, have filed this petition under Sec.482, Criminal Procedure Code, praying to call for the records in the above case and to quash the same.

(2.) SHORT facts are:

(3.) I have carefully considered the submissions made by the rival counsels. The impugned order does not disclose on what authority or under what provision of law under the Criminal Procedure Code, the Sub Divisional Magistrate is acting in passing the impugned order. That itself would show that there was total non-application of mind on the part of the Sub Divisional Magistrate in passing this impugned order and on that score, it is liable to be quashed. This Court has held in Jayavelu v. Inspector of Police, Oomachikulam Circle, Madurai District, 1988 L.W. (Crl.) 38, where preliminary order passed under Sec.111 of Criminal Procedure Code without indicating under which section of law as to whether under Sec.107, 108, 109 or 110 of Criminal Procedure Code the Executive Magistrate was acting, there was total non-application of mind and on that ground, that order was quashed. Here also, as I have pointed out, no provision of law whatsoever is mentioned while the Sub Divisional Magistrate had passed the impugned order. So, it cannot be sustained and has to be set aside.