Ramammal vs Sub-Divisional Magistrate (North) & Ors

Aggrieved against the impugned order passed by the Learned Sub- Division Magistrate (North), Pudhuchery on 16.02.2010, the present

petition under Section 482 of Cr.P.C. has been preferred before this Court.

In the impugned order of the 1st respondent it is mentioned that the Learned Sub-Divisional Magistrate received information from the Station

House Officer of ''D''-Nagar Police Station stating that there exist a dispute among the petitioner herein and the respondents 2-5 herein with

respect of the possession and enjoyment of the property comprised in R.S.No.80/3 and 80/4, measuring an extent 600 sq. feet of house located at

No.222, Poongulam, Kamaraj Salai, Pudhucheery. According to the petitioner she is the owner of a portion of a shop which was leased to her by

Sri Muthu Vinayagar and Sri Subrmaniyan Swami Kovil and Nagamuthumari Amman Temple Devasthanam. Whereas the petitioner''s brother''s

son namely Suresh, the 2nd respondent herein claimed that he is the owner of one of the shop and the petitioner who is referred as ''A'' party in the

impugned order causing hindrance to the possession and enjoyment of his shop. Hence a case in counter was made by both parties and the same

was referred by the ''D''-Nagar Police to the 1st respondent herein for passing order under Section 145 of Cr.P.C.

This Court cannot go into the disputed question of facts. The point for consideration arise before this Court is whether the impugned order

passed by the Learned Sub-Division Magistrate, under Section 145(1) is sustainable under law and the same is liable to be quashed or not?

I have heard Mr.V.Raghavachari, learned counsel for the petitioner, Mr.M.R.Thangavel, learned Government Advocate (Pondicherry) for the

respondents 1 and 2, Mr.T.Arul Raj, learned counsel for the 3rd respondent and there is no representation on behalf of the 5th respondent and

perused the order impugned.

The first contention of Learned Counsel for the petitioner before me is that the Learned Sub-Division Magistrate had not expressed his

subjective satisfaction and passed a preliminary order as contemplated under Section 145 (1) Cr.P.C. With regard to the above said argument of

the Learned Counsel for the petitioner it is useful to extract Section 145(1) Cr.P.C. hereunder for better understanding:

Section 145 (1)

Whenever an Executive Magistrate is 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 any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the

grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, 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 of dispute.

A bare reading of the above said provision would make it clear that on receipt of the information/report from a concerned police officer that a

dispute likely to cause a breach of peace exists concerning any land or water or the boundaries there on, the respective Executive Magistrate shall

make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned to attend the Court.

I have no quarrel with the proposition that whenever a Magistrate passes a preliminary order under Section 145(1) such an order should satisfy

all the requirements of law namely (i) the arrival of a subjective satisfaction, (ii) recording of the grounds for arriving as such satisfaction and (iii)

issuing the order in writing. In the present case on hand a reading of the impugned order shows that it has not satisfied the above requirements in

the sense that the Learned Sub-Divisional Magistrate has not mentioned the grounds of his satisfaction to order notice as contemplated under

Section 145(1) of Cr.P.C. Therefore, the order impugned is liable to be quashed on that ground itself.

The other submission of the Learned Counsel for the petitioner is that the petitioner herein has already filed a civil suit against the 2nd respondent

herein in O.S.No.593 of 2010 on the file of the Principal District Munsif Court, Pudhucherry and therefore the continuation of Section 145

proceedings will seriously prejudice the right of the parties. When the petitioner herein has already approached the competent civil Court to get

appropriate remedy, the impugned proceeding under section 145 Cr.P.C need not be preceded further and the continuation of the same would

cause hardship to the petitioner.

As a matter of fact the provision of inherent power envisaged under Section 482 of Cr.P.C are unique and special provisions conferring power

to a Court of record to administer justice strictly according to its judicial conscience based on law and fair play and in process of doing so to make

such orders as may be necessary to give effect to any order under this code and to prevent the abuse of process of Court or otherwise to secure

the ends of justice. It is to be noticed that under other enchantments inherent powers are also conferred upon the Subordinate Courts under

Section 151 of CPC. But under Criminal Procedure Code the legislature thought it proper to confer inherent power only upon the High Court

which is a Court of record within the meaning of Article 215 of the Constitution.

Consequently, the order passed by the Learned Sub-Divisional Magistrate (North), Pudhuchery on 16.02.2010 passing preliminary order

under Section 145(1) of Cr.P.C is hereby quashed and the instant Criminal Original Petition is allowed to prevent abuse of the process of Court

and to uphold the supremacy of rule of law in a democratic country like ours.

In the result, this criminal original petition is allowed and the proceeding in M.C.No.87 of 2010 dated 16.02.2010 on the file of the Sub-

Division Magistrate (North), Pudhuchery is hereby quashed. Consequently, connected miscellaneous petition is closed.