Madras High Court
S.Selvaraj vs A.Abdul Latheep on 16 June, 2022
Crl.RC.No.401 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Crl.RC.No.401 of 2017
and C.M.P.No.3698 & 3699 of 2017
1.S.Selvaraj
2.M.Jeevanand
3.S.Duraisamy
Petitioners
Vs
1.A.Abdul Latheep
2.Kadhar Moideen
3.Shajahan
4.S.Mani
5.The Sub Divisional 1st Class Magistrate/
Revenue Divisional Officer,
Perambalur.
6.The Special Sub-Inspector of Police,
Perambalur Police Station,
Perambalur.
(Crime. No.115/2017)
(R5 and R6 are impleaded as per the order of this Court
dated 08.03.2018 made in Crl.M.P.No.3753 of 2018 in
Crl.R.C.No.401/2017)
1/1
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Crl.RC.No.401 of 2017
Respondents
Prayer:- This Criminal Revision has been filed, under Sections 397 r/w 401
of Cr.PC, against the judgment dated 27.02.2017 passed in the Sub
Divisional 1st Class Magistrate/Revenue Divisional Officer, Perambalur
herein after referred to as ‘’Executive Magistrate’’ in
Na.Ka.No.A3/1078/2017.
For Petitioner :Mr.C.S.Dhanasekaran
For R1 to R3 :No appearanace
For R5 & R6 :Mr.S.Sugendran
Addl. Public Prosecutor
ORDER
This Criminal Revision is directed against notice issued by the 5th
respondent under Section 145 of Cr.P.C directing the petitioner to appear
before him on the ground that there is a likelihood of breach of peace in
respect of a dispute with regard to 50 cents of land comprised in
S.Nos.333/23A, 333/23B, 333/23C in Palakarai, Vadapuram village,
Perambalur.
2. The petitioners are shown as 'B' party along with another person
and the respondents one to three are shown as 'A' party.
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Crl.RC.No.401 of 2017
3.Mr.C.S.Dhanasekaran, learned counsel appearing for the
petitioners submitted that the impugned notice suffers from non
application of mind in as much as in the body of the notice the petitioners
are not shown as parties who are likely to cause breach of peace. The
Notice mentions only about Mani, Velmurugan and Manivel as persons
who are likely to cause breach of peace. Strangely, no notice has been
issued to Velmurugan and Manivel. Therefore, the learned counsel
submitted that there is total non application of mind in the issuance of
notice under Sectoin 145 Cr.P.C. He further submitted that at the time of
admission of this revision, this Court by an interim order granted stay of all
further proceedings pusuant to the impugned notice. And that thereafter,
there were no complaints of breach of peace.
4.Notice has been served on respondents one to three (‘A’ party) and
they are represented by a counsel as well. Today when the matter was taken
up for hearing there was no representation on their side.
5.The learned Additional Public Prosecutor appearing for the fifth
and sixth respondents instructions submitted that after the issuance of
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Crl.RC.No.401 of 2017
notice there were no complaints relating to any breach of peace.
6. This Court finds force in the submissions made by the learned
counsel for the petitioners that the impugned notice suffers from a total
non application of mind in as much as the petitioner is not shown as a
person who is likely to cause breach of peace in the notice and yet he has
been served with the notice. That apart no notice has been issued to two
other persons whose name is found in the notice as persons who are likely
to cause breach of peace. The notice is contrary to the provisions of
Section 145(1) Cr.P.C reads as follows:
Whenever an Executive Magistrate is sastisfied
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 wate or the
boundaries thereof, within his local jurisdiction, he
shall make an order in writing stating the grounds of
his being so satisfied, and requiring the parties
concerned in such dispute to attend his Court in
person or by pleader, on a specified date and him, and
to put in written statements of their respective claims
as respects the fact of actual possession of the subject
of dispute.
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Crl.RC.No.401 of 2017
It is clear from the above provision that the Executive Magistrate
can only call upon the '' parties concerned to attend his Court''. The
impugned notice is therefore liable to be set aside on this ground alone.
7. Further, this Court finds that there is no breach of peace after the
issuance of notice and no useful purpose would be served in reviving the
action under Section 145 Cr.P.C, five years after the issuance of notice.
8.For the above reasons, the impugned notice is quashed. However,
it is open to the fifth respondent to take any action in accordance with law,
if need arises.
9. The Criminal Revision stands allowed. Consequently, connected
miscellaneous petitions are closed.
16.06.2022
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
vsn
https://www.mhc.tn.gov.in/judis
Crl.RC.No.401 of 2017
To:
1.The Sub Divisional 1st Class Magistrate/Revenue Divisional Officer,
Perambalur
2.The Public Prosecutor, High Court, Madras
SUNDER MOHAN, J.
vsn
Crl.RC.No.401 of 2017
and C.M.P.Nos.3698 & 3699 of 2017
https://www.mhc.tn.gov.in/judis
Crl.RC.No.401 of 2017
16.06.2022
https://www.mhc.tn.gov.in/judis
