R G MATHI Vs. BALAKRISHNA REDDIAR

JUDGEMENT

(1.) BOTH the Criminal Miscellaneous Petition and the Criminal revision are directed against the order of the Executive Second Class Taluk magistrate-Cum-Tahsildar, Thittakudi, South Arcot District in C. M. P. No. 39 of 1988 and the parties in both the Crl. M. P. and the Criminal Revision Case are the same.

(2.) ONE KG. Mathi (Petitioner in both the Crl. M. P. and c. R. C.) as well as Balakrishna Reddiar, i. e. , 1st Respondent in the Crl. M. P. and the Criminal Revision Case instituted proceedings before the Executive II class Magistrate cum Tahsildar, Thittakudi under Sec. 145, Crl. P. C. in respect of the property situated in S. No. 64/1a-2bi measuring about 225 Sq. feet in thittakudi village, situate on the South of Thozhudhur, Vridhachalam Main Road bearing Door No. 176. Both the petitions have been taken on file and disposed of by the Executive Magistrate in C. M. P. No. 39 of 1988. On 16. 11. 1988 on a perusal of the materials placed before him, the Magistrate passed an under Sec. 145, crl. P. C. preventing both the parties herein from entering into the subject matter of dispute between the same parties. On 22. 5. 1989 the Magistrate reopened the matter and issued notice to the parties concerned directing them to appear before him on 29. 5. 1989 and make their respective claims regarding the subject matter of dispute. After perusing the materials placed before him, the Magistrate again passed an order on 22. 6. 1989 finding possession in favour of 1st respondent excepting the portion situated on the west of Door No. 176 to the extent of 0. 00. 5 hectare and preventing both the parties from entering into possession of the aforesaid 0. 00. 5 hectare till the competent civil court decides as to who will be entitled to the possession of the same. Regarding the same subject matter of dispute R. G. Mathi had also filed O. S. No. 69 of 1988 on the file of the Sub Court, vridhachalam for the relief of declaration and injunction impleading the present Respondents 1 and 2 there as defendants. Besides he also filed i. A. No. 335 of 1988 praying for interim injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the subject matter of dispute. It appears that the defendants had entered appearance and filed written statements and no interim order appears to have been passed so far.

(3.) THE other contention revolves on the question as to the non-observance of the mandatory procedure as contemplated in Sec. 145, crl. P. C. It is incumbent upon a Magistrate to pass a preliminary orderundersec. 145 (1), Crl. P. C. Before passing a preliminary order, the magistrate has to be satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning the subject matter of dispute which falls within his jurisdiction. THEn only he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to appear before him on a specified date and time and to put in written statements of their respective claims as respects the fact of actual possession of the subject matter of dispute. THE order that is so passed has to be duly served in the manner contemplated under Sub Clause 3 of the Section. THEreafter under Clause 4 of the same section a mandate is cast upon the Magistrate to receive all such evidence as may be produced by the parties adopting the summons procedure according to Sec. 274, Crl. P. C. Neither the order dated 16. 11. 1988 nor the order dated 23. 6. 1989 does explicitly reveal the adoption of the procedure as contemplated by the sanguine provisions of Clauses 1, 2, 3 and 4 of Sec. 145, crl. P. C. What all the Executive Magistrate did on both occasions was that he has straightway passed a final order without respect to adopt the procedure as referred to above and what is worse is he passed two final orders and the latter one by revoking his earlier order which in the circumstances of the case cannot at all be called an order other than a final order. As such it is manifestly clear that the Executive Magistrate flagrantly violated the mandatory provisions of Sec. 145, Crl. P. C. as rightly contended by the learned counsel for the petitioners.