IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 13.3.2008. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.R.C.No.838 of 2007 1. Mrs.Lalitha Narayan 2. Rahul Narayan Petitioners vs. 1. Latha Barathan 2. Prem Shankar Narayan 3. Inspector of Police, E1 Police Station, Mylapore, Chennai. Respondents Criminal Revision Case filed under sections 397 and 401 Cr.P.C. seeking to set aside the order passed by the learned Executive Magistrate, Mylapore-Triplicane Taluk in order B1/3540/07 dated 6.6.2007 and put the petitioners in their home. For petitioners: Mr.G.Anand For R1 : Mr.M.Kabir, Senior Counsel for M/s.Pathy & Pathy For R3 : Mr.A.Saravanan, Govt. Advocate (Crl. Side) ORDER
The criminal revision is filed challenging the order passed by the learned Executive Magistrate, Mylapore-Triplicane Taluk, Chennai in the proceedings in B1/3540/07 dated 6.6.2007.
2. It is a case where the Inspector of Police, E1 Police Station, Mylapore, having registered a case in Crime No.31 of 2007 arraying the respondents herein as ‘A’ party and the first petitioner herein as ‘B’ party, sent a report to the Executive Magistrate, Mylapore-Triplicane Taluk, Chennai to take proceedings under section 145 of the Code of Criminal Procedure.
3. The Tahsildar, Mylapore-Triplicane Taluk, having received the report from the said Police Station, initiated an enquiry proceedings under section 145(1) of the Code of Criminal Procedure and sent notice to the aforesaid ‘A’ party and ‘B’ party to attend the enquiry and submit their respective claims and contentions over the subject matter of dispute.
4. Having perused the records produced in connection with the aforesaid enquiry in the background of the written submissions made by either party, the Executive Magistrate, Mylapore-Triplicane Taluk, Chennai passed the impugned order in B1/3540/07 dated 6.6.2007. He having been satisfied during the enquiry embarked upon by him under section 145 of the Code of Criminal Procedure, returned a finding that the claim of actual possession by the aforesaid ‘A’ party was true. He having found that the first respondent herein was in legal possession of the property in dispute and was therefore entitled to retain possession of the same until dispossessed by due process of law, ordered that there should not be any disturbance to her possession.
5. Mrs.Lalitha Narayan, arrayed as ‘B’ party in the aforesaid proceedings, having included her son also as petitioner in this criminal revision case based on the reference found in the discussion part of the order of the Executive Magistrate, challenges the above order passed by the Executive Magistrate.
6. The court heard the rival submissions made on either side.
7. On a careful perusal of the proceedings initiated by the Executive Magistrate, it is found that he has simply directed the parties concerned to appear for the enquiry being conducted by him and submit their respective claims and contentions over the subject matter in dispute without passing any preliminary order as mandated under section 145(1) of the Code of Criminal Procedure. The aforesaid provision of law mandates that the Executive Magistrate, having been satisfied from the report of the police officer that a dispute likely to cause a breach of peace exists concerning land, he shall make an order in writing stating the grounds of his being so satisfied. Thereupon, he shall serve the said order on the parties concerned and require them to put in their written statements in respect of their rival claims with regard to the actual position of the subject matter of dispute.
8. As already pointed out by this court, the Executive Magistrate has not strictly adhered to the aforesaid mandatory provision of law of passing a preliminary order having been satisfied with the existence of breach of peace. It appears that the Executive Magistrate, having given notice to both the parties and having scanned the rival submissions made by both the parties, has straightway passed the impugned final order.
9. It is very much pertinent to refer to the verdict of this court in BASKARA NARAYANAN,A. v. So.MURUGESAN (2003(4) CTC 547) and also in THAMARAIAMMAL v. EXECUTIVE MAGISTRATE-CUM-REVENUE DIVISIONAL OFFICER (2007 Crl.L.J. 1885) wherein this court has declared that passing of a preliminary order under section 145(1) of the Code of Criminal Procedure is a mandatory requirement beforeever proceeding further to pass final order. Therefore, it is found that the impugned order passed by the Executive Magistrate is not sustainable in the eye of law.
10. Learned Senior Counsel appearing for the respondents has usefully cited an authority reported in AMRESH TIWARI v. LALTA PRASAD DUBEY (AIR 2000 SC 1504) wherein the Supreme court has observed that in cases where civil suit has been initiated for possession or for declaration of title in respect of the very same disputed property and where reliefs regarding protection of the disputed property can be sought for and granted by the civil court, the proceedings under section 145 of the Code of Criminal Procedure should not be permitted to continue.
11. Normally, this court, while setting aside the order passed by the Executive Magistrate without adhering to the mandatory provisions, direct him to initiate fresh proceedings on the very same cause of action. Now, the fact remains that the suit for partition and separate possession has already been initiated by the second petitioner herein arraying all the necessary parties concerned with the said property. The petitioners can very well seek necessary protection of the property in the same suit pending before this court. Therefore, in the background of the aforesaid ratio laid down by the Supreme Court, the court finds that no useful purpose would be served if the Executive Magistrate is directed to initiate fresh proceedings based on the very same report received from E1 Mylapore Police Station.
12. In view of the above, the impugned order passed by the Executive Magistrate stands set aside and both the parties are directed to seek proper and necessary relief from the civil forum where the suit for partition and separate possession is already pending. The criminal revision case is disposed of accordingly.
13.3.2008.
Index: Yes.
Internet: Yes.
ssk.
To
1. The Executive Magistrate,
Mylapore-Triplicane Taluk.
2. The Inspector of Police,
E1 Police Station,
Mylapore, Chennai.
M.JEYAPAUL, J.
Ssk.
Crl.R.C.No.838/2007
13.3.2008.
