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Judgment
Honorable Mr. Justice T. Sudanthiram
The petitioner herein has filed this petition u/s 482 Cr.P.C., challenging the order passed by the Revenue Divisional officer cum Sub Divisional
Magistrate, Madurai, the second respondent herein, u/s 145 Cr.P.C. in Na.Ka. No. 7682/2011/M, dated 03.10.2011, which prevented the two
rival parties from conducting the function of conferring the title ""Amabalakarar"".
The learned counsel appearing for the petitioner submits that the order passed by the Sub Divisional Magistrate u/s 145 Cr.P.C. is illegal and no
order can be passed u/s 145 Cr.P.C., without passing any preliminary order u/s 145(1) Cr.P.C. and further Section 145 Cr.P.C. is applicable
relating to the cases, wherein breach of peace exists concerning land or water or the boundaries thereof, but not with regard to conducting any
function or religious functions. The learned counsel appearing for the petitioner further submits that even the names of the parties are not mentioned
in the impugned order and the impugned order is very vague and uncertain.
The learned Additional Public Prosecutor submits that breach of peace exists between the two parties and already proceedings u/s 107 Cr.P.C.
is pending. By way of urge and necessity that order is passed by the learned Sub Divisional Magistrate, preventing both the parties from
performing the function.
The learned counsel appearing for the impleaded respondents submits that the Executive Magistrate has arrived at a subjective satisfaction
before passing the impugned order, as there was a breach of peace and thereafter only he passed the prohibitory order. But, instead of quoting
Section 144 Cr.P.C., inadvertently Section 145 Cr.P.C. is mentioned in the order and the Executive Magistrate has got power to pass such an
order u/s 144 Cr.P.C. Merely quoting wrong provision in the order does not give right to the parties to challenge the impugned order. The learned
counsel for the impleaded respondents further submits by relying on the ruling of the Hon''ble Supreme Court in State of Karnataka and another
Vs. Dr. Praveen Bhai Thogadia, reported in 2004 (2) Crimes 107 (SC) that the Court should not normally interfere with the matters relating to the
law and order which is primarily the domain of the concerned administrative authorities.
This Court considered the submissions and perused the copy of the impugned order.
The impugned order is passed by the Executive Magistrate on 03.10.2011, in which it is mentioned that there was a dispute between the two
parties in performing the function on swearing of Ambalakarar pattam and Section 107 proceeding is pending. Further it is observed that with
regard to performing the function on 04.10.2011, there was a difference of opinion between the two parties and if the function is allowed to be
performed, law and order problem may be created. The learned Executive Magistrate passed the order u/s 145 Cr.P.C. preventing them from
performing the said function. Of-course, u/s 145 Cr.P.C. the Executive Magistrate can pass an order, if a dispute, concerning any land or water or
boundaries thereof, likely to cause a breach of peace. But, in this case, the dispute is not with regard to any land or water or the boundaries
thereof, wherein u/s 144 Cr.P.C. the Executive Magistrate has got power, preventing the person or persons from doing certain act.
Though it was contended by the learned counsel for the impleaded respondents that Section 145 Cr.P.C. quoted in the order was only by
mistake, the Revenue Divisional Officer, who is shown as second respondent in this petition, has not come forward with any such explanation. In
the said circumstances, it is not possible for this Court to presume that the order was passed only u/s 144 Cr.P.C and not u/s 145 Cr.P.C. Even
otherwise, it is only non application of mind on the part of the Executive Magistrate, who passed the order. Further in the said order absolutely
there is no particular with regard to who are all the parties and there is no clarity in the order. Hence, this petition is allowed and the order, dated
03.10.2011, passed by the Revenue Divisional Officer in Na.Ka. No. 7682/2011/M is set aside. Of-course, it is open to the learned Executive
Magistrate, if necessary, to pass fresh orders as per law. Consequently, connected miscellaneous petition is closed.