ORDER
M.R. Hariharan Nair, J.
1. These two Criminal Miscellaneous Cases are at the instance of ‘B’ Party and ‘A’ Party respectively in M.C. No. 122/99 of the Sub Divisional Magistrate, Kasaragod at Kanhangad, which is a proceeding under Section 145 of the Code of Criminal Procedure. After initiating the case, the Sub Divisional Magistrate also passed an order appointing a Receiver in respect of the subject matter of the case invoking the powers under Section 146 of the Cr.P.C. While ‘A’ Party challenges both the aforesaid orders in Crl. M.C. No. 5616/2000, the challenge in Crl. M.C. No. 2513/2000 is the order passed by the Sessions Judge, Kasaragod, modifying the order of the Sub Divisional Magistrate passed under Section 146 of the Cr.P.C. and appointing three persons as joint Administrators.
2. The learned counsel for the petitioners in Crl.M.C. No. 5616/2000 submitted that the proceedings of the Sub-Divisional Magistrate are ab initio void in so far as there was no material before him to conclude that there was a dispute with regard to ‘possession’ warranting proceedings under Section 145 of the Cr.P.C. It is also argued with reference to the relevant order passed by the Sub Divisional Magistrate that he has not entered the required satisfaction for proceeding under Section 145 of the Cr.P.C. The learned counsel faurther submits that even though he tried revisions before the learned Sessions Judge, Kasaragod and lost them there that, does not in any way affect the maintainability of the present proceeding invoking jurisdiction of this Court udnr Section 482 of the Cr.P.C. Case law is also relied on hin this regard. The dismissal of Crl. R.P. 78/2000 by this Court before filing Crl. R.P. Nos. 61 and 62/2000 before the Sessions Judge, Kasaragod, is also of no relevance in the matter of maintainability of the present Crl. M.Cs., according to the learned counsel for the ‘A’ party.
3. The questions for consideration are :
(1) Whether the present proceeding brought under Section 482 of the Cr.P.C. is maintainable ?
(2) Whether the action initiated by the Sub Divisional Magistrate, Kasaragod, is without jurisdiction and liable to be quashed?
4. Point No. 1 :- The challenge with regard to the orders impugned in Crl. M.C. No. 5616/2000 was made before this Court once earlier under Section 397 of the Cr.P.C. in Crl.R.P. No. 78/2000 and when the present ‘B’ Party entered appearance, it was got dismissed as not pressed. It is contended that it was felt that the jurisdiction of the Sessions Judge should be invoked first and that was why the revision was not pressed. Whatever that be, this Court did not go into the correctness of the contentions raised by the parties in Crl. R.P. No. 78/2000 and hence Crl. R.P. Nos. 61 and 62/1999 filed before the Sessions Court cannot be taken as not maintainable or the orders passed therein invalid merely because of the fact of dismissal of Crl. R.P. No. 78/2000.
5. According to the learned counsel for the ‘A’ Party, the dismissal of Crl.R.P. Nos. 61 and 62/1999 by the learned Sessions Judge also does not affect the maintainability of the present case in so far as both revisions were not even maintainable, the reason being that the orders impunged before the learned Sessions Judge were only interlocutory orders with regard to which revision is specifically barred. It is the further contention that in any case the dismissal of those cases do not affect the jurisdiction of this Court under Section 482 of the Cr.P.C.
6. The ‘A’ Party has a further case that the orders of the Sub-Divisional Magistrate are ab initio void. The said contention is built upon the decision in Sushil Kumar Mehta v. Gobind Ram Bohra (1990) 1 SCC 193 whre it was held that a decree passed by a Court without jurisdiction is a nullity and its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon; even at the stage of execution and even in collateral proceedings. It is doubtful whether the said decision rendered while considering the powers of the Civil Court with regard to the rent control matters can be imported in the realm of criminal law. That apart, it cannot be said that the learned Sub Divisional Magistrate had no jurisdiction at all to pass the order even if the contention of the ‘A’ Party that the Magistrate did not have sufficient material before him to pass the relevant interim orders is accepted for a moment. He definitely had jurisdiction to go into the aspect of applicability of Section 145 of the Cr.P.C. and to pass orders invoking powers under Section 146 of the Cr.P.C. over the subject matter and even if he has erred in passing the impugned order, it cannot be said that his order is null and void or that he had no jurisdiction at all.
7. As regards the maintainability of the present proceeding, brought after dismissal of the revisions tried before the learned Sessions Judge, I find merit in the contention of the ‘A’ Party. Krishnan v. Krishnaveni (1997)4SCC 241 : (1997 AIR SCW 950 : AIR 1997 SC 987 : 1997 Cri LJ 1519) considered the question whether a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397. It was found that a second revision before the High Court under Section 397(1) of the Cr.P.C. is prohibited. Thereafter, the Court further considered the aspect whether the inherent power of the High Court under Section 482 can be invoked in a case where the impunged orders are already considered by the Sessions Court in exercise of the revisional powers. It was found that the object of Section 482 and purpose behind the revisional power under Section 397 read with Section 401 conferred upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice and that the inherent power of the High Court which is very wide is preserved independent of the power under Section 397. The High Court, however, must exercise the power under Section 482 sparingly and cautiously in cases where the Sessions Judge has already exercised the revisional power under Section 397(1) of the Cr.P.C. It was further held that when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, or that a sentence or order is not correct, it is but the salutary duty of the High Court to intervene so as to prevent abuse of process or miscarriage of justice or to correct irregularities or errors committed by inferior criminal Courts in its jurisdictional process or in the matter of illegality of sentence or order. When the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice, the High Court has to step in and rectify the defect at the very inception lest grave miscarraige of justice might ensue.
8. Madhu Limaya’s case (1997) 4 SCC 551 : (AIR 19978 SC 47 : 1978 Cri LJ 165) also takes the view that the inherent powers of the High Court are not limited by Section 397(2) of the Cr.P.C. and that though the High Court has no power of revision as regards an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of aggrieved party. In view of the said finding as also the findings in Jitender Kumar Jain v. State of Delhi (1998) 8 SCC 770 and Krishna Narain Lal v. State of Bihar (1999) 9 SCC 247, Dharmarajan v. State of Kerala (1995) 1 Ker LT 732, Ramesh Narain Saxena v. I.T. Commissioner AIR 1996 SC 1824 : (1996 AIR SCW 2118) and Ganesh Narayan Hegde v. S.B. Bangarappa (1995) 4 SCC 41 : (1995 AIR SCW 2364: 1995 Cri LJ 2935), I am of the view that the present Cri. M.Cs. can be held to be maintainable though the Sessions Court had already dismissed the challenge of the impugned orders attempted through revisions.
9. Point No. 2 :- The entire challenge with regard to the jurisdiction and propriety of the proceedings before the Sub-Divisional Magistrate is based on the edifice that in the order passed by him under Section 145, of the Cr.P. C. there is no finding that he was satisfied that a dispute likely to cause a breach of the peace exists concerning actual possession of any land and that the Magistrate has proceeded only on the belief that there exists a dispute with regard to the possession of land and building. It is also argued that the report of the Sub-Inspector of Police which was the basis of preliminary order also does not mention that there is a dispute with regard to the possession as on the date of the report which is likely to lead to breach of the peace. The learned counsel for the ‘A’ Party did not, however, go into the relevant report.
10. The case law on the point may be gone into Sankaran v. State, 1979 Ker LT 137 : (1979 Cri LJ NOC 1180 and Asraf v. Abdulla (1987) 1 Ker LT 795 provide that for purposes of applying Section 145 of the Cr.P.C. what is to be gone into the actual possession of the subject matter as on the date of commencement of proceedings Gabrial Thankayyan v. Narayanan Nadar, 1977 Ker LT 511 : (1977 Cri LJ 1870) underlines the need for recording grounds of satisfaction. Thankayyan’s case 1977 Ker LT 511: (1977 Cri LJ 1870) is relied on by the ‘A’ Party to contend that orders under Sections 145 and 146 (1) of the Cr.P.C. cannot be passed by the Magistrate simultaneously and that he would get jurisdiction to consider the applicability of Section 146(1) only after signing the order under Section 145. Unlike in the present case where there are separate orders under Sections 145 and 146(1) that was a case where only a composite order was there which in view of the legal position aforementioned, was found liable to be quashed. There is nothing before me which would show that the Magistrate considered the question of appointing Receiver before signing the order under Section 145 in the present case and that makes all the differences. A perusal of the preliminary order passed on 15-12-1999 shows that the Magistrate, on a perusal of the report of the Sub-Inspector of Police, was convinced that there existed a dispute between ‘A’ and ‘B’ Parties regarding possession which was likely to cause a breach of the peace. In fact, the order itself starts with the aforesaid findings and the mention in para (e) that the report relates to the dispute regarding right of possession does not alter the situation, albeit there is a distinction between the right of possession and actual possession as far as scope of Section 145 of the Cr.P.C. is concerned. The order passed under Section 146 of the Cr.P.C. also states explicitly that the reason for interference is satisfaction that breach of peace might arise from the dispute between the partis concerning possession, Prima facie, there is no irregularity in the order.
11. ‘A’ Party has case that if the actual possession as on the date of report is looked into, ‘A’ Party has the following materials to show that they were in actual possession :
(1) ‘A’ Party consists of the Founder President of the Society whose property is the subject matter of the case and parties 2 and 3 are the Secretary and Treasurer respectively thereof.
(2) The production of extract issued by the Registrar of the Societies is prima facie proof of their competence to act by virtue of Section 19(4) of the Societies Registration Act.
(3) ‘A’ Party holds a permit authorising further constructions in the property which is produced as Annexure VI along with the reply affidavit filed before this Court.
(4) ‘A’ Party was granted permission to use loud speakers in connection with Ramzan Celebration which is produced as Annexure II in this case.
12. ‘A’ Party has certainly a good prima facie case of actual possession as on the date of initiation of the action by the Sub-Divisional Magistrate, but that is an aspect to be established before the latter by adducing necessary evidence during enquiry. The learned counsel for the ‘B’ Party submits that the collection of evidence in this case is already commenced. It is for the parties to these cases to establish their respective case of actual possession before the Magistrate during evidence. The interests of the ‘A’ Party would be sufficiently met if a direction is given to the Sub-Divisional Magistrate to approach the issue bearing in mind the fact that the emphasis in Section 145 of the Cr.P.C. is on the aspect of likelihood of breach of the peace arising from dispute regarding actual possession of the subject matter as at the time presentation of the report by the Police Officer or in any other information based on which he proceeds and not on right of possession.
13. In the circumstances, Crl. M.C. No. 5616/2000 is disposed of with a direction to the Sub-Divisional Magistrate, Kasaragod at Kanhangad, to complete the proceedings in M.C. No. 122/99 initiated by him bearing in mind the above legal principles and affording sufficient opportunity to both parties to adduce evidence. There will also be a direction to hte said Magistrate to make an earnest endavour to complete the proceedings in the case within a period of three months from the date on which a copy of this order is produced before him.
14. As far as Crl.M.C. 2513/2000 is concerned, the challenge is with regard to the appointment of a three Member Body to act as Receiver which will consist of one nominee each from a panel of names submitted by ‘A’ Party and ‘B’ Party and one nominee of the Government in the place of the Village Officer, Udma who was originally appointed by the Sub-Divisional Magistrate as sole Receiver. The Government nominee, even after the order of the learned Sessions Judge, is the said Village Officer himself. The question arises whether there is any defect in substituting the single member receiver by a three Member Body.
15. The learned counsel for the ‘B’ Party placed reliance on the decision in Sree Jain Swetambar Terapanthi Vid (S) v. Phundan Singh (1999) 2 SCC 377 : (AIR 1999 SC 2322) (in support of the contention that a multimember body would be inappropriate. That was a case of receivership under Order 40, Rule 1 of the C.P.C. and was considered on the special facts of the particular case. A registered Society was running a school and it was in a title suit alleging that the defendants who had ceased to be Assistant Teacher/headmaster of the school Secretary etc., that an administrative body was appointed as Receiver. The trial Court had found that prima facie case had been made out to grant a temporary injunction. Since none of the defendants hads successfully challenged their expulsion in a suit or in proceedings under the Societies Registration Act or under any other law it was found that the appointment of Joint Administrators which had the effect of ousting the existing Managing Committee from the management of the Society and its schools was not just and proper. In other words, what was under consideration was not whether a joint body would be less effective or in approprities in the place of a single member third party receiver. Hence”, the said decision cannot be of avail to the ‘B’ Party in support of their contention in the above matter.
16. When the nature of dispute regarding possession and the activities of the Society are considered, I do not find any illegality or impropriety in subsisting the appointment of the Village Officer alone by a three Member Body as above. Crl.M.C. No. 2513/2000 is hence found to be without merit and it is dismissed.
Crl.M.C. No. 5616/2000 is disposed of with the directions contained in para 13 supra.