Rasi Goundar vs Muthu Goundar and Others

P. Kunhamed Kutti, J.—The petitioner herein seeks to quash the proceedings in M.C. No. 5 of 1962 on the file of the Sub-Divisional

Magistrate, Sankari. The circumstances under which the above proceedings were taken may be shortly stated.

In M.C. No. 42 of 1960 on the file of the Sub-Divisional Magistrate, Namakkal, proceedings had been taken u/s 145, Criminal Procedure

Code, on a report that there was likelihood of a breach of peace between the petitioner and the respondents and in the order passed therein on a

finding given by the District Munsif, Sankari, u/s 145(1), Criminal Procedure Code, the petitioner who is a lessee under a registered lease deed

was found to be in possession of the property so that the respondents were directed not to disturb his possession but to establish their title in a

Court of Civil Law. It is conceded before me that thereafter a suit was filed by the respondents to establish their right and that suit is still pending. It

is further conceded that during the pendency of this suit, the respondents also filed an application for a temporary injunction restraining the

petitioner from interfering with their possession of the property without success. But it is averred by the petitioner that the respondents again

disturbed his possession and the learned Magistrate sent the petition for enquiry and on the police report that there was likelihood of breach of

peace, action was taken again u/s 145, Criminal Procedure Code, in M.C. No. 5 of 1962.

The question now is whether, in the circumstances, it is open to the learned Magistrate to take proceedings u/s 145, Criminal Procedure Code

or whether he should have taken other steps to abate interference by the respondents.

It seems to me that having already passed an order u/s 145, Criminal Procedure Code, it is not open to the Magistrate to again take

proceedings under the said section on grounds such as those alleged by the petitioner particularly when consequent on the order passed by him a

suit has been filed in Civil Court to establish the rights of the respondents. The remedy contemplated in such circumstances is not one u/s 145,

Criminal Procedure Code, but under relevant provisions of the Penal Code, as for instance Section 188, Indian Penal Code. The order passed by

the learned Magistrate directing issue of notice to the respondents u/s 145, Criminal Procedure Code, in the circumstances, is uncalled for and has

to be set aside. This petition is therefore allowed and the proceedings taken by the learned Magistrate u/s 145 , Criminal Procedure Code, is

quashed.