This Criminal Revision is directed against the order passed in the proceedings in Na.Ka.No.A2/522/2017, dated 21.02.2017 by the first respondent.
2. (i) The petitioners / “A” party are belonging to the group of hereditary Poosari Marutha Thevar and the “B” Party are belonging to the group of hereditary Poosari Venkadapathri Thevar. The petitioners are worshipping their deity Andichiamman from time immemorial and their temple is situated in Door No.2, T.S.No.310, Ward No.4, West Car Street, Virudhunagar. The petitioners obtained electricity connection and that they have been paying the property tax to the temple building without any default. The “B” party have no connection whatever with the administration of the said Andichiamman Temple. One Subramania Thevar filed a suit in O.S.No. 241 of 2002 claiming to be the hereditary poosari of Andichiamman Temple before the District Munsif Court, Virudhunagar and pending suit, he died. His son Murugesan filed a petition to implead himself as a party to the said suit and the same was dismissed. Subsequently, the suit itself was dismissed. Thereafter, the 3/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 said Murugesan filed two suits in O.S.Nos. 143 of 2003 and 32 of 2005 claiming tobe the hereditary poosari of the Andichiamman Temple and sought various reliefs, that the District Munsif Court, Virudhunagar dismissed both the suits on 21.02.2016 and that the findings of that Court have become final. While so, “B” party who suffered decrees in the Civil Court tried to interfere with the possession and administration of the Andichiamman Temple and hence, the petitioners have lodged a complaint on 29.01.2017 with Virudhunagar Bazaar Police Station. But, the police without taking any action on the complaint, registered a case in Crime No. 102 of 2017, u/s. 107 Cr.P.C., as against “A” and “B” parties and referred the matter to the first respondent / Revenue Divisional Officer for taking necessary action.
(ii) The first respondent issued an enquiry notice calling upon both the parties to appear before her for enquiry on 17.02.2017 at 3.00 p.m., The petitioners except 1 to 4 have appeared before the first respondent and after conducting enquiry, adjourned the matter to 21.02.2017. Despite the objections raised by the “A” party, the first respondent has passed the impugned order on 21.02.2017. Aggrieved by 4/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 the said order, “A” party have come forward with the present revision.
3. Whether the impugned order dated 21.02.2017 passed by the first respondent is liable to be set aside? is the point for consideration.
4. The learned counsel appearing for the petitioners would contend that the first respondent without having any jurisdiction or power, directed both the parties to maintain the temple in a particular way, that the first respondent has not stated anything about the nature, character, class of sureties and the amount of bond in the enquiry notice and that the impugned order passed on the basis of invalid enquiry notice is illegal. The learned counsel would further contend that very direction of the first respondent to the both parties to appear for enquiry on the same date and time is illegal, that the first respondent has also not stated any instances which compelled her to initiate 107 Cr.P.C., proceeding, that since the competent Civil Court has already decided the rights of the parties, the first respondent has no power or jurisdiction to interfere with the right and management of the temple and that therefore, the order impugned is illegal 5/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 and liable to be quashed.
5. The learned Government Advocate (Crl.Side) appearing for the respondents 1 to 3 would contend that both the “A” and “B” party have claimed pooja rights and other rights in the Andichiamman temple that the mediation held consequent to the compliant lodged by the petitioners with the third respondent was of no avail and there was no solution, that First Information Report came to be registered in Crime No. 102 of 2017 u/s. 107 Cr.P.C., as there was a chance for breach of peace or for disturbance to the public tranquility and that thereafter, the case was referred to the first respondent. She would further contend that the first respondent sent summons to both the parties to appear for enquiry on 17.02.2017 and since the petitioners 1 to 4 have not attended the enquiry, the matter was adjourned to 21.02.2017, that on 21.02.2017 as there was consensus between both the parties, the first respondent passed the impugned order directing the parties to maintain peace and harmony besides allowing them some rights in the said temple, based on their consensus, that the “A” party people who had participated in the said enquiry had informed the first respondent that the first petitioner has 6/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 preferred the complaint without their knowledge, that the decisions arrived at by both the parties were taken into account and the first respondent has only endorsed their decision by way of the impugned order, that the first respondent has never taken any decision by herself, that since there was a chance for breach of public peace, the first respondent was forced to pass the impugned order, that since the petitioners 1 to 4 have never participated in the 107 Cr.P.C., proceedings, they have no loco standi to question the same and that therefore, criminal revision case is liable to be dismissed.
6. It is not in dispute that both the parties are making claim and counter claims with respect to administration of the temple and the Pooja rights therein. No doubt, the complaint was lodged with the police by the first petitioner, belonging to “A” party and only on that basis, First Information Report came to be registered in Crime No. 102 of 2017 u/s. 109 Cr.P.C., It is also not in dispute that the petitioners 1 to 4 have not attended the enquiry either on 17.02.2017 or on the subsequent date 21.02.2017. The main contention of the first respondent is that both the parties have settled their matters amicably and only on the basis of the agreement arrived at between them, she has passed the impugned order. 7/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 In the impugned order, the first respondent has listed out the decisions arrived at in the meeting held on 21.02.2017 and whereunder both the parties have decided not to raise any issue with respect to performing of poojas and worship, that they have also decided to keep the pooja box in the same place where it was kept time immemorial, that they have also decided to do renovation work jointly, that both the parties have to pay the property tax, electricity consumption charges and all other charges payable by the temple and that they have also decided to maintain accounts separately.
7. The main contention of the revision petitioners is that very direction of the first respondent for both the parties to appear on the same date and time is very much against law. As already pointed out, since both the parties have entered into the compromise between themselves, the first respondent has directed both the parties to appear on the same date and time and that since the first respondent passed the impugned order by recording the decision reached between the parties, the direction of the first respondent cannot be found fault with. Moreover, the first respondent has not passed any order or direction with respect to the Administration of 8/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 the Temple by herself. At this juncture, it is necessary to refer the decision of the Division Bench of this Court reported in 2017(1) MWN (Cr.) 199 (DB) (M. Krishnamurthy and others Vs. The Sub Divisional Magistrate – Cum – Revenue Divisional Officer, Krishnagiri and another).
8. When the correctness of the decision of this Court reported in 2002(1) CTC 72 (Somasundaram and 10 others Vs. the Revenue Divisional Officer, Dharapuram) was doubted, the matter was referred to Division Bench and the questions of law formulated and the answers arrived at, are reproduced hereunder:
(i) Is the previous incident sign quo nan for initiating
Section 107 Cr.P.C., proceedings?
Ans: It is not necessary that a previous incident of breach of peace to occur for initiating
Section 107 Cr.P.C., proceedings.
(ii) Can proceedings under
Section 107 Cr.P.C., be initiated before an incident that is likely to disturb the peace or public tranquility 9/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 takes place?
Ans: The proceedings u/s. 107 Cr.P.C., can be initiated even before the incident that is likely to disturb the peace or public tranquility takes place, provided that the Executive Magistrate has information before him, based on which he is of the opinion that there is sufficient ground for proceeding.
iii) Should a show cause order issued under
Section 107 Cr.P.C., reflect that the Magistrate has assessed the truth of the information and the nature for taking action?
Ans: The Magistrate is not required to record anywhere his subjective opinion because, at the outset,
Section 107 Cr.P.C., itself does not mandate so. The order passed u/s. 111 Cr.P.C., is the physical manifestation of the opinion formed by the Executive Magistrate and the truth of the information can be tested only in the enquiry u/s. 116 Cr.P.C.,
iv) Can a show cause order u/s. 107 Cr.P.C., was per se subjected to judicial review?
10/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 Ans: The show cause order u/s. 107 r/w. 111 Cr.P.C., can be subjected to judicial review under
Section 482 Cr.P.C., or
Article 226 of the Constitution of India, if on the face of it, the order does not satisfy the minimum requirements of
Section 111 Cr.P.C. or that the same has been passed by a person, who is not an Executive Magistrate and not otherwise. Hence, the impugned order passed u/s. 111 Cr.P.C., should contain that much of information that would be necessary for the notice to refute the same in the enquiry under
Section 116 Cr.P.c., and nothing more.
9. Considering the above, it is very much clear that the previous incident is not sine quo non, that likelyhood of breach of peace is sufficient and that the show cause notice is not required to reflect probe into the truth of information. Applying the above legal dictum, the order impugned in the revision cannot be found fault with. Moreover the learned Government Advocate (Crl. Side), would inform that after passing of the impugned order, the temple festivals were going on smoothly and there was no dispute between the parties. At this juncture, the learned counsel appearing for the petitioners would fairly concede that the subsequent 11/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 temple festival were conducted smoothly and there was no problem between the parties.
10. Considering the above, this Court is of the view that there is no infirmity in the order impugned and hence, this Court concludes that the revision which is devoid of merits is liable to be dismissed.
11. In the result, the Criminal Revision Case is dismissed. Consequently, the Miscellaneous Petition is closed.
12.02.2021 Index : Yes : No Internet : Yes : No trp NOTE: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To
1.The Executive Magistrate and Revenue Divisional Officer, 12/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 Aruppukottai, Virudhunagar District.
2.The Thasildar, Virudhunagar Taluk, Virudhunagar District,
3.The Inspector of Police, Virudhunagar Bazaar Police Station, Virudhunagar District, K.MURALI SHANKAR, J., trp 13/14 http://www.judis.nic.in CRL.RC(MD).No. 219 of 2017 Pre-delivery order made in CRL.RC(MD).No. 219 of 2017 and CRL.MP(MD).No. 1923 of 2017 12.02.2021 14/14 http://www.judis.nic.in