1995 ALLMR ONLINE 513

G.R. MAJITHIA, J.

VISHWANATH KASHINATH VIRKAR Vs. NITINCHAND KESHAVJI GALA

Cri. W. P. No. 596 of 1994

18th April, 1995

Petitioner Counsel: Anil V. Anturkar
Respondent Counsel: Shidore, D. T. Palekar

Headnote not Available

JUDGMENT

JUDGMENT :- Vishwanath Kashinath Virkar and 6 others (hereinafter referred to as "original Party No. 2") have challenged the order passed in Criminal Revision Application No. 167 of 1993 by 4th Additional Sessions Judge, Satara, in this Criminal Writ Petition.

2. The factual matrix is as under :-

R. B. Mane, Assistant Police Inspector, submitted a report on March 20, 1993 to the Executive Magistrate, Koregaon, stating therein that property bearing No. C. T. S. 1933, comprising of a godown and a shop, is in the possession of Nitinchand Keshavji Gala and Narayan Keshav Virkar (hereinafter referred to as "original Party No. 1"); that on March 19, 1993, original Party No. 2 entered into the shop and godown by force and damaged and threw away the articles lying therein; that original Party No. 2 has also closed the door opening towards the godown by fixing a lock and wooden battens on the door; that original Party No. 1 lodged a complaint on the basis of which proceedings under sections 107 and 151 of the Criminal Procedure Code (hereinafter "the Code") were initiated against the parties; that the parties could not arrive at a compromise and proceedings under section 145 of the Code were instituted.

On receipt of the complaint, the Executive Magistrate issued notices to both the parties, viz. original Party No. 1 and original Party No. 2, on March 26, 1993, directing them to file their say about the report filed by the police. The parties filed their say and also placed documents on record.

On August 19, 1993, the Executive Magistrate passed the following order :-

"Both the parties have filed several other documents as evidence in support of their claim, but these documents need not be taken into consideration while deciding the case.

As per above stated grounds and reasoning I declare as per section 145(4), Criminal Procedure Code that prior to the two months from the date of the receipt of report party No. 2 have forcibly and illegally dispossessed party No. 1 from the property in this dispute. Hence the possession be given to party No. 1 by taking the same from the party No. 2 according to section 145(6), Criminal Procedure Code. The notices be served to both the parties accordingly in writing."

Original Party No. 2 challenged this order in revision in Criminal Revision Application No. 167 of 1993 before the Sessions Judge, Satara, which was entrusted to 4th Additional Sessions Judge, Satara, for disposal. The learned Additional Sessions Judge, after perusing the record, found that the learned Executive Magistrate did not pass a preliminary order as contemplated under section 145(1) of the Code. He also found that the parties were not given proper opportunity to lead their oral evidence. In para 11 of the order, he stated thus :-

"11. In view of the above circumstances, I think that it is not necessary to decide this revision petition on merits but I think it deserves to be remanded back to the learned Magistrate for fresh enquiry after passing necessary preliminary order and after giving proper opportunity to both parties to lead their oral evidence as well as documentary evidence. Taking into consideration the circumstances in this matter, I think there is no necessity to saddle the costs of this revision petition to either of the parties. Hence, the following order is passed :

Revision Petition is party allowed.

Judgment and order under this revision petition is set aside and the matter is remanded to the learned Taluka Executive Magistrate, Koregaon and he is directed to pass the necessary preliminary order after his due satisfaction and then allow both the parties to lead their evidence if they want to do so.

Taking into consideration, the present circumstances, the learned Magistrate is also directed to expedite this matter and decide the same as early as possible, preferably within two months from the receipt of the R & P to that Court."

This order is under challenge in this Writ Petition.

3. Narayan Keshav Virkar (Original Party No. 1 in the proceedings under Section 145 of the Code) filed a suit with regard to the property in the Court of Civil Judge, Junior Division, Koregaon, which came to be registered R. C. S. No. 109/1992. He made the following prayers in the suit :-

"(a) the portions shown in the map as A. B. C. D. be out to the possession of the plaintiffs by removing the encroachment made by the defendant thereon :

(b) It be declared that the plaintiff is the owner of the property bearing C. T. S. No. 1939;

(c) costs of this suit be recovered from the defendants and be given to the plaintiffs."

Along with the suit, he also filed an application under Order 39, Rules 1 and 2 of the Civil Procedure Code, which was declined.

4. Learned counsel for the petitioners submitted that the learned Additional Sessions Judge having found as a matter of fact that the learned Executive Magistrate did not pass a preliminary order under section 145(1) of the Code, the entire proceedings stood vitiated and the learned Judge was in error in remanding the case for passing a fresh preliminary order and thereafter permitting the parties to lead oral evidence. Section 145(1) of the Code reads thus :-

"Whenever an Executive Magistrate is satisfied 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 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 time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute."

The object of section 145 is to prevent breach of peace, to provide a speedy remedy by bringing the parties before the Court, and ascertain who of them was in actual possession and to maintain status quo until their rights are determined by a competent Court. The proceedings under section 145 are primarily concerned with the prevention of breach of the peace by declaring the party found in possession to be entitled to remain in possession until evicted therefrom in due course of law and are not meant for the purpose of evicting any person from any land.

5. It is essential for the assumption of jurisdiction by the Magistrate that he should be "satisfied" from a report of a police officer or from other information, which would include an application by the party dispossessed, that there is likelihood of breach of the peace. The question whether on the material before the Magistrate, he should initiate proceedings under section 145 or not is within his discretion. No hard and fast rule can be laid down as to the sufficiency of the material for his satisfaction. Where the Magistrate fails to record in his preliminary order the reasons for his satisfaction, or the grounds for his satisfaction, the order cannot be sustained. Failure to record a finding by the Magistrate vitiates the proceedings. If the Magistrate did not record reasons for passing the preliminary order, the order is patently illegal. In Anadi Lal vs. Sukh Chand, AIR 1930 Cal. 715, it was held thus :-

"... It is necessary for making an order of this description that the Magistrate should be satisfied at the time of drawing up the proceedings that there is then existing a likelihood of breach of the peace arising from the disputes between the parties with regard to the land in question."

The ratio of that judgment was followed in P. Munnadha vs. Marappa Goundar, AIR 1969 Mad. 411, where it was observed thus :-

"13. Section 145(1), Criminal Procedure Code makes it also clear that the Magistrate passing a preliminary order must be satisfied that the likelihood of the breach of the peace exists on the date of the preliminary order. If the preliminary order is based upon an earlier report, long before the preliminary order was passed and without any further fresh information received in respect of the dispute, it cannot be said that the Magistrate is satisfied that the likelihood of the breach of peace existed on the date of the preliminary order."

6. This Court had an occasion to examine the mandatory provisions of section 145(1) of the Code in Laxman vs. Bahimkhan, 1976 Cr.L.J. 1492. The learned Judge, after comparing the provisions of section 145(1) and section 146, observed thus :-

"17. ...A comparative reading of these two sections, either old or new, the new going a step ahead in taking out the proviso of emergency and adding it in section 146, would make it clear that in the first instance the Magistrate is required to make an order in writing stating the grounds of his being so satisfied. The Legislature has put in the forefront the satisfaction of the Magistrate as to the likelihood of the existence of a breach of peace. These provisions, to my mind, are mandatory. The omission to observe them vitiates the entire proceedings as they are the prerequisites or sine qua non for instituting proceedings under section 145 of the Criminal Procedure Code.

18. The next stage is the service and publication of the preliminary order contemplated by sub-sections (1) and (3). If there is no preliminary order, one fails to understand what is required to be served on the parties or at the property. Obviously, if there is no preliminary order within the contemplation of sub-section (1) of section 145, then the requirements of sub-section (3) cannot be satisfied or complied with. Sub-section (3) as noted above, deals with the publication of the order made in writing stating the grounds. If in a given case no such order is made and served in accordance with the provisions of sub-section (3) then I am afraid, the very proceedings would be without jurisdiction."

I am in respectful agreement with the view taken in Laxman's case. In the instant case, the learned Magistrate omitted to observe the mandatory provisions of section 145 of the Code and did not draw a preliminary order. Drawing of a preliminary order was sine qua non for initiating action under section 145 of the Code. Since the order was not drawn, the institution of the proceedings stands vitiated. The learned Additional Sessions Judge was ill-advised not to draw his attention to the mandatory provisions of section 145(1) of the Code. He was in error in remanding the case and directing the Magistrate to pass a fresh preliminary order. Whether there was a likelihood of breach of the peace or not has to be seen as on the date when the police report is filed before the Magistrate. If on that date there was no likelihood of breach of the peace, the Magistrate could not assume jurisdiction under this section.

7. Apart from this, the Civil Court is already seized of the matter. If any of the parties to the lis fears that his or her right is likely to be threatened, he or she can move the Civil Court far redressal of the wrong.

8. I am not inclined to deal with the other submissions made by the learned counsel for the petitioners as I am unable to sustain the order of the learned Additional Sessions Judge on the ground that the proceedings before the Magistrate stood vitiated as he had not served the order under sub-section (3) of section 145 of the Code which was to be prepared under section 145(1) of the Code.

9. Learned counsel for respondents Nos. 1 and 2 raised a preliminary objection that the Writ Petition is not maintainable in view of the bar created under section 397(3) of the Code. He further submitted that the petition under Article 227 of the Constitution at the instance of the petitioners is not maintainable. I had the occasion to deal with this aspect of the matter in Mrs. Kumudesh Bhandari vs. Ms. Gopika Tapuriah, Criminal Application No. 1614 of 1994 (since reported in 1995 (2) Mh.L.J. 425) decided on April 7, 1995, where I have held that there is no bar to the maintainability of a petition under section 482 of the Code and I could exercise jurisdiction under section 482. For the same reasonings, I can interfere with the order of the learned Additional Sessions Judge which I find is patently illegal, in exercise of powers under Article 227 of the Constitution.

10. For the reasons stated above, the Writ Petition succeeds and is allowed and the following order is passed :-

(i) The order of the Additional Sessions Judge passed in Criminal Revision Application No. 167 of 1993 dated March 25, 1994 to the extent it has remitted the case for passing of a fresh preliminary order and permitting the parties to lead oral evidence is set aside.

(ii) Resultantly, the order of the Magistrate passed in Chapter Case No. 1/1993 dated August 19, 1993 is set aside. As he did not proceed in accordance with the provisions of section 145(1) of the Criminal Procedure Code, the entire proceedings under section 145 stand vitiated.

(iii) The police or the parties are at liberty to move a fresh application under section 145 of the Criminal Procedure Code if an eventuality mentioned therein arises.

(iv) Rule is made absolute in the above terms.

Certified copy expedited.

Petition allowed.