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Judgment
Pratap Singh, J.—This Revision is directed against the preliminary order passed u/s 145(1), CRL. P.C. in M.C.4/93 by the Sub Divisional Executive Magistrate and Revenue Divisional Officer, Salem.
Short facts are: The Inspector of Police, Salem Steel Plant. Salem had reported to the Sub Divisional Executive Magistrate and Revenue Divisional Officer. Salem that a dispute likely to cause a breach of peace exists between counter Petitioners A&B parties concerning a portion of the land in Cauvery Peak Estate Comprised in S. No. 61/A in Northenchedu Village, Yercaud Taulk. The said Officer was satisfied from the report of the Inspector of Police and the records appended there to that a dispute likely to cause an imminent breach of peace exists and passed a preliminary order. Aggrieved by the same, B party in the said order has come forward with this criminal Revision.
Mr. N. Natarajan, Learned Senior Counsel appearing for the revision Petitioner would submit that the order of the court below suffers from the infirmity, that the ground on which the officer was satisfied that a dispute likely to cause an imminent breach exists, has not been set out in the order and so it is liable to be set aside. He would further submit that a civil dispute concerning the very same property is pending in a civil court and so, a parallel proceedings cannot be sustained. Per contra, Mr. K. Doraiswamy, learned Senior counsel appearing for A party, would submit that the property in question was allotted to A party in final decree proceedings, that A party was in possession as receiver during the pendency of the proceedings in the civil court and ultimately, the High Court upheld the allotment of properties Under the final decree, but yet B party had filed the suit on 3-11-1992 for injunction and had also filed a petition for injunction and obtained ex parte interim injunction on 4-11-1992 and that in the said suit, the suit property was not properly described and boundaries were given only for two sides and extent was not given and when that injunction was opposed by A party, B party withdrew the petition for injunction. He would further submit that armed with ex parte interim injunction order, B party tried to interfere with the Petitioners possession and that was resisted by A party, that A party had given complaint to the police and it was registered in Crime No. 1046/92 on 31-12-1992 for offences under Ss. 147, 148, 447 and 506 (ii) I.P.C. that B party had given a counter complaint on 1-1-1993 and that complaint was registered in Crime No. 3/93 for the same offences, that the Inspector of Police had registered a case u/s 145 Code of Criminal Procedure on 5-1-1993 and he sent the F.I. Rs. in the aforesaid cases along with his information to the Revenue Divisional Officer and after going through the documents and information, the officer satisfied himself and passed orders and it is not liable to be set aside.
I have carefully considered the submissions made by rival counsel. I shall first take up the first ground urged by Mr. N. Natarajan that the officer has not set out the ground of his satisfaction in the preliminary order passed u/s 145 Code of Criminal Procedure and hence it is liable to be set aside. For considering this ground, the relevant portion of the preliminary order needs extraction. It reads as follows:
Whereas the Inspector of Police, Salem Steel Plant, Salem had reported that a dispute like to cause a breach of peace exists between counter Petitioners A&B parties concerning a portion of the land in Cauvery Peak Estate comprised in S. No. 61/1a in Northenchedu village, Yercaud Taluk......situated within the limits of my jurisdiction and I am satisfied from the report of the Inspector of Police, Salem Steel Plant, Salem and the reports appended there to that a dispute likely to cause an imminent breach of peace exists concerning the above property, thereby require you both A&B parties to attend my court in person or by pleader on 27-1-93 at 10:00 a.m. and to put in written statements and documents of their respective claims.......
On the same date, the officer had also passed a warrant of attachment. Now I shall straight away refer to the ruling relied upon by Mr. N. Natarajan. In Karthikeyan & 6 Others v. State by Inspector of Police (L & O) (1990 L.W.(Crl.) 49). Learned brother Judge, Arunachalam, J had occasion to consider the legality of an order passed u/s 145(1), Code of Criminal Procedure and the learned Judge has held that there are three fundamental requisites to maintain an order u/s 145(1), Cr.P.C.
They are (1) There must be a report of a police officer or other information that a dispute was likely to cause breach of peace concerning property mentioned in order. (2) The Magistrate must be satisfied on such police report of other information that the dispute was likely to cause breach of peace and (3) on the satisfaction of the Magistrate, he must make an order in writing, stating the grounds for satisfaction, in the order he intends making u/s 145(1) of the Code of Criminal Procedure After considering Nagammal v. Mini and Ors. (1966 L.W. (Crl) 101, Peria Munnappa Gounder alias Pachamuthu and Ors. v. Marappa Goundar (1968 L.W.(Crl.) 179), Janaki Ramachandran v. State (1988 L.W.(Crl.) 147), Natesa Thevar and Ors. v. Executive Magistrate and Tahsildar, Tiruthuraipoondi and Ors. (1987 L.W.(Crl.) 50) and Nanikyaraj Ballan v. K. Jayaraja Bala and Ors. (1981 L.W.(Crl.) 10), learned Judge has observed as follows:
The trend of the above decisions, clearly postulates that twin requirements of the satisfaction of the Magistrate and the ground of his satisfaction were different, if a Magistrate has stated that he is satisfied from a police report or to other information that a breach of peace was likely to be caused, he was recording the fact of his satisfaction, but not the grounds of satisfaction, the grounds or reasons which had led him to assume and cannot merely be that there was police report or other information, since that is necessarily the prerequisite for action. The order, therefore, must indicate the grounds for finding that there were likelihood of breach of peace.
In the impugned order which came up for consideration before Arunachalam, J it was seen that the preliminary order showed that the Inspector of Police, Law and Order, Ranipet, has stated that the claim or ownership for a tiled house in Bhajanai Koil Street, Avarakarai Village, was under dispute between two parties and it would cause breach of peace and tranquility in the area requiring enquiry u/s 145(1) of the Code of Criminal Procedure The Executive Magistrate, after noting all that the Inspector of Police had stated, had proceeded to incorporate in the preliminary order that this dispute was likely to induce breach of peace in this connection between the two parties and he was satisfied to proceed u/s 145(1) of the Code of Criminal Procedure That order did not disclose the grounds for finding that a breach of peace was likely. So, it was held that there was non-compliance of the provisions of Section 145(1) Code of Criminal Procedure and it had vitiated the preliminary order.
Mr. K. Doraiswamy has relied upon R.H. Bhutani v. Mani, J. Desai (1969 Crl. L.J.(S.C.) 13). In it the Apex Court held that sufficiency of materials on which a preliminary order u/s 145(1) Code of Criminal Procedure was passed, cannot be enquire into in revision. The learned senior counsel also relied upon Sukumar v. State (1972 Crl. L.J. 1402). In this ruling, Mysore High Court had held that while passing the order u/s 145(1) Code of Criminal Procedure the Magistrate had the F.I.R. and the Magistrate expressed his satisfaction to taking action u/s 145(1) on the basis thereof, the omission by the Magistrate to state his reasons for his satisfaction for taking action not render the order invalid. With respect, I am not in agreement with the view expressed by the Mysore High Court which is not in tune with the consistent view taken by this High Court, in the rulings which I have referred to supra.
In the impugned order except by stating that he was satisfied from the report or the Inspector of Police, Salem Steel Plant, Salem and the records appended thereto, the Sub Divisional Executive Magistrate and Revenue Divisional Officer, Salem had not set out the grounds or reasons which had led him to that satisfaction. The language of Section 145(1) Code of Criminal Procedure envisages that he must indicate grounds for finding that there was likelihood of breach of peace. In the impugned order, the Executive Magistrate had not indicated the grounds for arriving at his satisfaction. Non-compliance with the provisions of Section 145(1), Code of Criminal Procedure certainly vitiates the preliminary order and on this ground the preliminary order is liable to be quashed.
Regarding the other ground taken by Mr. N. Natarajan that in as much as civil suit was filed, there cannot be any parallel proceedings. I am unable to accept the submission for the following reasons. Only a suit for bare injunction was filed. The description of the property in it does not exactly tally with the property concerned in this impugned order. As has been pointed out by Mr. K. Doraiswamy, the extent has not been stated and boundaries to have not been stated in the description of property in the plaint, copy of which is filed in the typed set filed by the revision Petitioners. Moreover, the civil court has not given any finding in that suit. In Nagarathinam v. Sub. Divisional Magistrate and Sub Collector, Thanjavur (1992 M.L.J. (Crl.) 498, this Court has held that unless there is a order or decree binding upon the parties, mere filing of a civil suit at an earlier point of term, cannot be a bar to proceedings u/s 145 Code of Criminal Procedure Hence the second ground urged by Mr. N. Natarajan cannot be sustained.
In view of the above, the impugned order cannot be sustained as it is vitiated by the legal infirmity referred to above and consequently the criminal Revision is allowed quashing the impugned order passed in M.C.4/93 by the Sub Divisional Executive Magistrate and Revenue Divisional Officer, Salem.