Madras High Court
Vengatesan vs The Executive Magistrate on 8 April, 2021
Crl.R.C.No.918 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2021
CORAM:
THE HON'BLE Mr. JUSTICE P.VELMURUGAN
Criminal Revision Case No.918 of 2020
and Crl.M.P.No.6432 of 2020
1.Vengatesan
2.M.Karunagaran
3.Nagendran
4.Santhanakrishnan
5.Gopalakrishnan
6.Megavarman ... Petitioners
..vs..
1.The Executive Magistrate
and Revenue Divisional Officer,
Tiruvallur.
2.The Inspector of Police,
T-16, Nasaratpet Police Station,
Chennai – 600 123.
3.Mr.Rajamani
4.Egambaram
5.Devarajan ... Respondents
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Crl.R.C.No.918 of 2020
Criminal Revision Case filed under Section 397 and 401 Cr.P.C, to
call for the records relating to the proceedings in Na.Ka.1224/2020/A1
dated 29.09.2020 on the file of the 1st respondent and set aside the same.
For Petitioners : Mr.R.Bharath Kumar
For Respondents : Mr.T.P.Savitha
Government Advocate (Crl.Side)
for R1 and R2
Mrs.C.R.Rukmani
for R3 to R5
ORDER
This Criminal Revision Case has been filed against the
proceedings in Na.Ka.1224/2020/A1 dated 29.09.2020 on the file of the
first respondent.
2.The case of the petitioners is that the first petitioner herein
lodged a complaint dated 02.06.2020 before the second respondent
Police against the respondents 3 to 5, which was assigned as
C.S.R.No.182 of 2020. On coming to know about the same, in order to
circumvent the criminal prosecution, the third respondent herein had
lodged a complaint, which was assigned as C.S.R.No.183 of 2020.
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Crl.R.C.No.918 of 2020
Subsequently, the second respondent Police conducted an enquiry and
advised the parties to approach the Civil Court for appropriate remedy.
However, the respondents 3 to 5 again started to dispose the movables in
the said properties, the first petitioner again lodged a complaint dated
21.06.2020, which was assigned as C.S.R.No.200 of 2020 and the second
respondent warned the respondents 3 to 5 to refrain from their illegal
activities. However, they refused to refrain from their activities, hence,
the second respondent Police registered the First Information Report in
Crime No.667 of 2020 under Section 145 of Cr.P.C and forwarded a
copy of the F.I.R to the first respondent for further proceedings.
3.In pursuant to the registration of the F.I.R, the Tahsildar,
Poonamallee has conducted an enquiry on 08.09.2020. Based on the
report submitted by the Tahsildar, the first respondent herein without
following the provisions of Section 145 Cr.P.C passed an impugned
order dated 29.09.2020 in Na.Ka.No.1224/2020/A1, without application
of mind by determining the rights unilaterally in favour of the
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Crl.R.C.No.918 of 2020
respondents 3 to 5. Aggrieved over the said order, the petitioners are
before this Court with the present Criminal Revision Case.
4.The learned counsel for the petitioners would submit that the
first respondent has failed to consider the fact that Civil Suit in
O.S.No.266 of 2019 is pending between the parties before the learned
District Munsif, Poonamallee and passed the impugned order. He would
further submit that as per Section 145 Cr.P.C., the Executive
Magistrate/the first respondent herein has to satisfy 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, should make an
order in writing upon satisfied and require the parties to attend the Court
and to put in written statements of their respective claims with regard to
the dispute. However, in the present case, the first respondent without
following the procedures as prescribed under Section 145 Cr.P.C. passed
the impugned order and hence, the same is liable to be set aside.
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5.In support of his contention, the learned counsel for the
petitioner relied upon the judgment of the Apex Court in M/s.Kranti
Associates Pvt.Ltd & Anr Vs. Masood Ahmed Khan & Ors reported in
2011 (273) ELT 345 (SC), wherein formulated certain principles to be
followed by the quasi-judicial authority with regard to recording of
reasons in support of its conclusion while passing an order. However, the
same was not followed in the present case.
6.In the case of R.Thiagarajan V. K.Angamuthu reported in
1996-2-L.W.(Crl.) 615, this Court held as follows:
''the enquiry under Section 145 Cr.P.C should be
initiated only when the mandatory provisions of
Section 145(1) Cr.P.C has been complied with by
passing a preliminary order giving out all the necessary
details and reflecting the grounds of satisfaction arrived
at by the Magistrate, otherwise the entire proceedings
would be illegal.''
However, the first respondent without satisfying herself with regard to
actual dispute and not discussing anything about the possibility of the
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Crl.R.C.No.918 of 2020
breach of peace and even without passing of the preliminary order has
passed the impugned order by unilaterally determining the rights in
favour of the respondents 3 to 5, which is per se illegal. Therefore, the
impugned order is liable to be set aside.
7.The learned Government Advocate (Crl.Side) for the respondents
1 and 2 would submit that the first respondent/Executive Magistrate and
Revenue Divisional Officer, Tiruvallur has satisfied with the averments
made in the letter of the second respondent Police and the report of the
Tahsildar, Poonamallee and also considering the materials and passed the
impugned order. There is no ground to set aside the impugned order and
hence, the present revision is liable to be dismissed.
8.Heard the learned counsel on either side and perused the
materials available on record.
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9.Admittedly, the first petitioner filed a complaint before the
second respondent Police against the respondents 3 to 5. Subsequently,
the third respondent also filed the complaint against the petitioners.
Thereafter, the second respondent Police conducted an enquiry and
advised the parties to approach the Civil Court for appropriate remedy.
However, the respondents 3 to 5 again started to dispose the movables in
the said properties, the first petitioner again filed the complaint dated
21.06.2020 and the second respondent warned the respondents 3 to 5 to
refrain from their illegal activities. However, they refused to refrain from
their acts, the second respondent registered the First Information Report
in Crime No.667 of 2020 under Section 145 of Cr.P.C and forwarded the
copy of the F.I.R to the first respondent for further proceedings. Based on
the enquiry conducted by the Tahsildar, Poonamallee, the first respondent
passed the impugned order.
10.On a careful reading of the impugned order passed by the first
respondent, it reveals that the said authority without following the
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Crl.R.C.No.918 of 2020
procedures contemplated under Section 145 (1) Cr.P.C., has decided the
rights of the parties and also without passing the preliminary order has
straight away passed the final order.
11.It is settled proposition of law that the principle object of
Section is, therefore, to preserve the peace and not to determine the rights
and title of the parties. The enquiry under Section 145 Cr.P.C confined to
the question of actual possession only, the Magistrate cannot enquire into
the right of the parties. In proceedings under Section 145 Cr.P.C., the
Magistrate has to decide the question of possession without reference to
the merits of the claims of any of the parties to a right to possess the
subject matter of the dispute, where he considers such merits of the title
of the parties, he exceeds his jurisdiction.
12.In the present case, the first respondent without applying his
mind and followed the procedures as contemplated under Section 145(1)
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Cr.P.C and passed the impugned order and decided the right of the
parties.
13.In the light of the above facts, the impugned order dated
29.09.2020 passed in Na.Ka.No.1224/2020/A1 by the first respondent is
liable to be set aside. Accordingly, it is set aside and the matter is
remitted back to the first respondent, who shall pass orders afresh, in
accordance with law as contemplated under Section 145 Cr.P.C and also
directed to complete the proceedings within a period of three months
from the date of receipt of a copy of this order.
14.With the observations, this Criminal Revision Case is disposed
of. Consequently, connected miscellaneous petition is closed.
08.04.2021
Internet: Yes/No
ms
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Crl.R.C.No.918 of 2020
P.VELMURUGAN, J.
ms
To
1.The Executive Magistrate
and Revenue Divisional Officer,
Tiruvallur.
2.The Inspector of Police,
T-16, Nasaratpet Police Station,
Chennai – 600 123.
3.The Public Prosecutor,
High Court, Madras.
Crl.R.C.No.918 of 2020
and Crl.M.P.No.6432 of 2020
08.04.2021
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