ABDUL GAFFAR Vs. STATE OF GOA

JUDGEMENT

(1.) THE petitioner - original party No. 2 Abdul Gaffar has challenged the validity of the order under Section 145 (1) Criminal Procedure Code issued against him in Case No. MAG/145/3/94 dated 12. 3. 1994 by the Sub Divisional Magistrate, Quepem basically on the ground that the learned Magistrate has not mentioned the grounds separately, which pursuaded him and which satisfied him to pass the impugned order. The main contention is that although the notice reads: Whereas I am satisfied on the under mentioned grounds from police report that a dispute is likely to cause breach of peace TI those grounds are not at all set out in the said order, and if that be so, this is a case of want of application of mind on the part of the Sub Divisional Magistrate and in that light of the matter, the order should be quashed. According to him, the provisions of section 145 Cr. P. C. rather make it mandatory on the part of the Sub Divisional Magistrate to set out the grounds and if they are not so incorporated, the Magistrate should be prevented from exercising the drastic powers under the said provision.

(2.) FOR that purpose, he has relied on 1980 Criminal Law Journal 1151 in the case of Sardari Lal and others v. The State of Punjab wherein the High Court of Punjab and Haryana has laid down that The Magistrate must record the grounds of his being satisfied. The order must reflect subjective satisfaction. The Magistrate merely adopting suggestions in the police report would render the order invalid. He has also relied on in the case of Fakirchand v. Bhanaram1 wherein also practically the same ratio has been reiterated: The provision as to stating the ground of the Magistrate being satisfied as to there being an apprehension of a breach of the peace is mandatory despite the fact that section 145 is adapted to cases of urgency. It is not possible to lay down any hard and fast grounds. . In the case of Peria Mannadha Goundar v. Marappa Goundar, the Madras High Court has also supported the view in following words The preliminary order should state clearly the reasons and grounds on which the satisfaction is based and that the Magistrate had applied his mind in passing the preliminary order. In the case of Indira and others v. Dr. Vasantha, the Madras High Court has also laid down similar observations and they are as follows: The very jurisdiction of the Magistrate to proceed under this section arises out of his satisfaction of a dispute likely to cause breach of peace either on the report of a police officer or upon other information, which information must be reflected in the order which he should make in writing stating the grounds of his satisfaction. This order which is the sine- qua-non of the proceedings initiated under section 145 Cr. P. C. must require the parties to file the written statement. TI The tenor of this observation is that the parties must know the grounds which led the Magistrate to issue the order under section 145 Cr. P. C. Taking support of this ratio, the learned advocate for the petitioner-party No. 2 has claimed that the grounds have not been mentioned although it is suggested that the police report has been perused but that does not lead us to believe as to what was the ground which satisfied the learned Magistrate. When he took upon him to mention those grounds separately, he did not do so and that should pursuade this Court to quash this order.

(3.) THIS has been vehemently resisted by the learned advocate for the respondent No. 2 original party No. 2 to the order and the learned advocate for the respondent No. 2 has contended that all these arguments shall have to be rejected in view of the clear ratio laid down by this Court in the case of V. K. Rao v. Chandappa. It is a Division Bench Judgment called for in the reference made to that Court. He has also drawn my attention to the view taken by the Supreme Court which appears on page 226 and according to him, in view of the ratio of this Court, which in turn is supported by the view of the Supreme Court, there is no reason whatsoever to quash the said order.