A. DHAVEETHU Vs. DIST. COLLECTOR AND ORS.

JUDGEMENT

(1.) THE challenge in this revision case is to a final order made under Section 145 of the Code of Criminal Procedure. One of the main contentions of the petitioner in this revision is that before passing the final order, the second respondent/Sub Divisional Magistrate, Devakottai, had not passed any preliminary order as required under Section 145(1) of the Code of Criminal Procedure, recording his satisfaction that there exists a dispute which is likely to cause a breach of the peace concerning any land or water or boundaries thereof. The learned counsel Mr. T. Lajapathi Roy, appearing for the petitioner, would submit that recording his satisfaction by the Executive Magistrate that there exists a dispute between the parties, which is likely to cause breach of peace, alone gives jurisdiction to the Magistrate to proceed further and to pass a final order under Section 145(4) of the Code of Criminal Procedure. It is his further contention that without there being a preliminary order under Section 145(1) of the Code of Criminal Procedure, if any final order is passed under Section 145(4) of the Code of Criminal Procedure, the same is wholly without jurisdiction and the same shall stand vitiated. The learned counsel would further submit that the failure to pass a preliminary order under Section 145(1) of Cr.P.C. is not a mere irregularity, but it is a serious illegality which touches upon the very jurisdiction of the Magistrate to proceed further.

(2.) IN order to substantiate his contention, the learned counsel has relied on a catena of judgments. The first judgment which he makes reliance upon is that of Hon'ble Mr. Justice K.N. Basha in Thamaraiammal and another Vs. Executive Magistrate cum Revenue Divisional Officer, Chengalpattu and another, reported in : (2007) 1 MLJ (Crl.) 928. In that case, the issue before the learned Judge was as to whether passing of the final order under Section 145(4) is vitiated in the light of the fact that there was no preliminary order under Section 145(1) of the Code. The learned Judge has relied on a Division Bench judgment of this Court in M. Krishnamoorthy Vs. P.M. Neelamegham, reported in : 2004 (1) L.W. (Crl.) 22 and another judgment of a learned Single Judge of this Court in A. Baskara Narayanan Vs. So. Murugesan, reported in : 2004 MLJ (Crl.) 50. The learned Judge has held that the final order made under Section 145(4) of the Code stood vitiated on account of the fact that there was no preliminary order under Section 145(1) of Cr.P.C.

(3.) MR . Isaac Mohanlal, the learned counsel appearing for the respondents 4 & 5 would seriously dispute the above legal position. According to him, passing of a preliminary order under Section 145(1) of the Code does not give jurisdiction to the Magistrate to proceed further. It is his further contention that recording the satisfaction of the Magistrate that there exists a dispute, which is likely to cause breach of peace, is only a subjective satisfaction and based not on any evidence, that too after giving opportunity to the parties. It is his further contention that the satisfaction is not with reference to the possession of the property as on the date of passing of the preliminary order. In the preliminary order, according to him, the Magistrate is required only to record his satisfaction on two counts viz., (i) there exists a dispute between the parties; and (ii) such dispute is likely to cause breach of peace. He would further point out that under Section 145(4) of Cr.P.C. when a final order is passed by the Magistrate, he is required to decide ultimately a different issue viz., as to who among the parties is entitled to continue to be in possession of the subject of dispute.