This Criminal Original Petition has been filed by the petitioner to call for the records relating to the proceedings of the 1st respondent in E3/3203/10 dated 10.08.2010 under Section 145 (1) of the Code of Criminal Procedure and quash the same.
2. The petitioner is arrayed as 'A' Party No.1 in the proceedings of the 1st respondent.
3. Brief case of the fact as per the petitioner is that the lands to an extent of 43 grounds and 2,215 sq.ft. comprised in old Paimash No.967 to 972, T.S.No.16/1 to 16/6, Block No.38, Puliyur Village, Kodambakkam Division was originally owned and possessed by the petitioner's grand father, late Kalyana Sundaram and he died intestate leaving behind his wife Anjammal and she also died intestate and it is the case of the petitioner that thereafter by succession he has become the owner of the aforesaid property along with his mother Smt.Jayalakshmi and sisters, Mahadevi and Manjula. It is further submitted that out of the aforesaid lands, lands to the extent of 31 grounds and 2,346 sq.ft. were sought to be acquired by the Government of Tamilnadu for Tamilnadu Housing Board. Later, the acquisition proceedings were confirmed by this court by a judgment dated 27.07.2009 in Writ Appeal No.366/1999 and thereafter, review application at the instance of another claimant in respect of the said claim has been filed with an application for condonation of delay, acceptance of cause title and the same is pending. The case of the petitioner is that he was also taking steps for getting reconveyance of the said land from the Government and while the matter standing thus, at the instance of the power of attorney, certain documents appeared to have been created and there were attempts to challenge the title and possession of the petitioner. Further, in respect of the very same property, a civil suit has also been filed which is pending in C.S.No.166 of 1989. While it is so, the petitioner had been served with the impugned notice from the 1st respondent referring to case in Crime No.74 of 2010 under Section 145(1) of the Criminal Code of Procedure filed by the 2nd respondent, calling upon the addresses of the said notice and in the said notice, the petitioner's mother and other respondents and two of their Advocates have been formally impleaded as respondents 10 and 11 and they were directed to appear before the 1st respondent for an enquiry on 30.4.2010. On receipt of the aforesaid notice, the petitioner's counsel Thiru.V.Mani addressed a detailed letter to the 1st respondent herein on 28.5.2010 bringing it to the notice of the 1st respondent that the said notice dated 09.04.2010 was served only on 20.5.2010 and that the said notice was improper and unsustainable in law and that there was not even a preliminary order and hence the said notice may be withdrawn. Even without taking the said reply issued by the counsel for the petitioner into consideration, the 1st respondent had again issued the same notice with the date as 12.7.2010 for hearing. On receipt of the aforesaid notice, the petitioner's counsel had again sent reply on 6.7.2010 and despite the same, the 1st respondent had issued another notice dated 10.8.2010 calling upon the parties to appear before him on 30.08.2010 is the matter which has been challenged in this petition. The petitioner is challenging the notice dated 09.04.2010.
4. Though several grounds have been raised in the petition, the learned counsel for the petitioner submits that under Section 145 of the Cr.P.C. the Executive Magistrate can issue summons only if he satisfied from the report of the Police Officer or upon other information that the dispute which is likely to cause breach of peace, exists and in which an event, the Executive Magistrate should made an order in writing stating the grounds if he is being so satisfied and require the parties in such dispute to attend in person or by a counsel on a specific date and time and put in their written statement of their respective claims as regards the actual position of the suit in dispute, whereas the notice issued does not express the satisfaction of the Magistrate who has passed the order and that no details have been stated with regard to the dispute, thereby the impugned order passed by the first respondent is liable to be set aside and relied on the decisions of this Court reported in 2010-2-L.W. (Crl.) 961 (Ganesan & 7 others v. The Revenue Divisional Officer-cum-Sub Divisional Magistrate, Tiruchengode) in which it has been held as follows:
“ 12. Apart from this, the learned Executive Magistrate while issuing notice to both parties dated 15.02.2010, directing both parties to appear on 01.03.2010, he has not made out the grounds for his satisfaction that there was a dispute and the dispute was likely to cause breach of peace.
13. It also appears that already a suit also has been filed by A-party before the Civil Court and it is pending and no interim order has been passed so far”.
He also further relied on the decision of this court reported in 2012 (1) MWN (Cr.) 458 (Vishwanathan v. The Revenue Divisional Magistrate, Devakottai) in which it has been held as follows:
“16. In the aforesaid circumstances, while issuing notice under Section 145 of Code of Criminal Procedure, the Executive Magistrate should have satisfied himself based on the materials available before him. In the instant case, though Counter was filed by the First Respondent, in order to show that there was subjective satisfaction, no supporting document was produced. Neither the Petitioners nor the Respondents have stated, anything to show that there was any Criminal case registered by the concerned police so as to make out a case for subjective satisfaction and to initiate the proceeding under Section 145, Cr.P.C. On these circumstances, I am of the view that there is no material on the side of the First Respondent to take action against the petitioners under Section 145, Cr.P.C. Hence, in the light of the decisions referred to above, and on the facts and circumstances, I find it just and reasonable to allow this Revision”.
5. For the sake of reference the impugned order which under challenge is extracted hereunder:
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gFjp. g[ypa{h; fpuhkk;. T.S.No.16/1, 16/6 Rkhh; 43/2215 fput[z;l; kidepyk; bjhlh;ghf Fw;wtpay; tprhuizKiw rl;lk; 1973 gphpt[ 145(1) Fw;wtpay; eilKiwr; rl;lg;go bghJ mikjpf;F Fe;jfk Vw;gLj;jpaijj; bjhlhe;J tprhuiz bra;a ntz;oa[s;sjhy tl;lhl;rpah; kw;Wk; brayhl;rp ejpgjp mthfs; Kd;dpiyapy 30/08/2010 md;W kjpak; 3/00 kzpf;F tprhuizf;F M$uhFkhW nfl;Lf;bfhs;sg;gLfpwPh;fs;@/
6. On perusal of the order, this Court observes that the order is passed without any application of mind. The Executive Magistrate has not made any reference to the nature of dispute, and whether any criminal case has been registered in respect of the dispute. Further, nothing has been stated on whose instance the proceedings are initiated. The order does not speak about the first respondent being satisfied either from police report or other intimation that the dispute is likely to cause breach of peace. Further, no observation has been made by him with regard to the satisfaction arrived on the materials and the application of mind in passing the impugned order. The provision of making an order under writing after initial satisfaction and stating the ground of his satisfaction has been held to be mandatory. The order lacks application of mind by the Magistrate and arrival of subjective satisfaction based on materials and therefore, the impugned order passed by the Magistrate is liable to be quashed. This Criminal Original Petition is ordered accordingly. Consequently, the connected miscellaneous petition is also closed.
22.09.2017 uma Index : Yes/No Internet: Yes/No To
1. The Tahsildar-cum-Executive Magistrate, Egmore-Nungambakkam Taluk Office Chennai-600 031.
2. The Public Prosecutor,High Court, Madras.
3. The Inspector of Police, R2 Kodambakkam Police Station, Chennai-600 024.
A.D.JAGADISH CHANDIRA, J
uma
Crl.O.P.No.19885 of 2010
22.09.2017