Telangana High Court
Chavidi Rama Rao vs The State Of Telangana on 4 November, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.9183 of 2024
ORDER:
This Criminal Petition is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'the BNSS') by the petitioner, seeking to quash the proceedings in impugned order dated 26.07.2024 passed in Rc.No.C/709/2024 by the Executive Magistrate and Tahsildar, Khammam. By the impugned order, respondent No.2 by imposing Section 164 of the BNSS prohibited the entry or continue to entry or to carry on any activity in the disputed land.
2. Heard Sri Alluri Divakar Reddy, learned counsel for the petitioner and Sri Arun Kumar Doddla, learned Additional Public Prosecutor for respondent No.1-State.
3. Learned counsel for the petitioner submitted that respondent No.2 has erroneously passed the impugned order during the pendency of the civil proceedings in O.S.No.04 of 2024 and O.S.No.304 of 2024. He further submitted that since investigation in Crime No.203 of 2024 is completed, there are only two crimes pending i.e., Crime No.64 of 2024 and Crime No.296 of 2024. He also submitted that without issuing the prior 2 SKS,J Crl.P.No.9183 of 2024 notice under Section 164 of BNSS, respondent No.2 passed the impugned order. In this regard, he placed reliance on the judgment of the Erstwhile High Court of Judicature of Telangana and Andhra Pradesh in the case of Shaik Liyaqat and others v. State of Telangana and another 1 and prayed the Court to set aside the impugned order dated 26.07.2024.
4. On the other hand, learned Additional Public Prosecutor for respondent-State opposed the submissions of learned counsel for the petitioner stating that respondent No.2 has rightly passed the impugned order as the petitioner and respondent No.3 are creating nuisance in the village over a land dispute which creating hurdle in maintaining the law and order. Hence, he prayed the Court to dismiss the Criminal Petition.
5. In case of Shaik Liyaqat (Supra), the Erstwhile High Court of Judicature of Telangana and Andhra pradesh at paragraph Nos.4 and 5 held as under:
"4. The essential two ingredients of this provison are recording of satisfaction about the grounds to initiate such proceedings and giving notice to the parties to appear before the Court either in person or by pleader.
5. But, in the present proceedings, no satisfaction of the Executive Magistrate is recorded as required under Section 145(1) of Cr.P.C and no notice was ordered to the petitioners requiring them to appear before him to put in written statements of their respective claims. The order was passed by the Executive Magistrate without following the mandatory procedure prescribed under Section 145(1) of Cr.P.C and on this ground alone the proceedings are liable to be quashed."1
2017 (1) ALD (Crl.) 452 3 SKS,J Crl.P.No.9183 of 2024
6. A plain reading of the above would abundantly make it clear that giving a prior notice to the parties is mandatory before the passing any order by the Magistrate under Section 145(1) of Cr.P.C.
7. As seen from the record, respondent No.2 passed the impugned order without following the mandatory procedure of issuing the prior notice to the parties. Hence, in view of the facts and circumstances, this Court is of the considered opinion that ends of justice would be met if the proceedings in Rc.No.C/709/5204 are quashed.
8. Accordingly, the Criminal Petition is allowed and the proceedings passed in Rc.No.C/709/204 by the Executive Magistrate and Tahsildar, Khammam, are hereby quashed. Further, respondent No.2 is at liberty to follow the procedure as contemplated under the provisions of the Act.
Miscellaneous applications, if any pending, shall also stand closed.
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K. SUJANA, J
Date: 04.11.2024
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