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Selvaraju vs S.H. Officer, Nettapakkam Police … on 12 July, 1999

Madras High Court
Selvaraju vs S.H. Officer, Nettapakkam Police … on 12 July, 1999
Equivalent citations: 1999 (3) CTC 641
Bench: A Ramamurthi

ORDER

1. Petition filed by ‘B’ party under section 482 of the Code of Criminal
Procedure, to quash the proceedings in M.C.No,32/99 on the file of the Sub Divisional Magistrate, Pondicherry.

2. The case in brief is as follows:

The Sub Divisional Magistrate, Pondicherry passed an order under section 145 of the code of Criminal Procedure on 18.3.99. The petitioner is the ‘B’ party and the 2nd respondent is the ‘A’ party. The Sub Divisional Magistrate failed to see that ‘A’ had already been advised to go to Civil Court. ‘B’ party had already constructed a house on the land. When once possession is admitted to be with ‘B’ party, there cannot be any proceeding under section 145 Crl.P.C. There was no application of mind on the part of the authority to pass the impugned order.

3. Learned Counsel for the 2nd respondent contented that there was breach of peace and because of this only, the authority was constrained to pass an order under section 145 Cr.P.C.

4. Heard the learned counsel of both sides.

5. The petitioner ‘B’ party has filed the petition aggrieved against the order passed under section 145 Cr.P.C. dated 18.3.99. Learned Counsel for the petitioner mainly contented that in the order passed by the lower authority, no grounds had been furnished and there was non application of mind and on these two grounds, the order is liable to be quashed. Moreover, ‘B’ party had already constructed a house in the land and the concerned Police Officer had already directed ‘A’ party to go to Civil Court and this being so, the order under section 145 Cr.P.C. is absolutely unnecessary.

6. Learned Counsel for the petition or relied upon Shankarlal vs. Alhaz Khaja Abdul Hasan, 1991 Crl.L.J. 1556, wherein it is observed that it is one of the mandatory requirements of sections 145(1) and 146(1) Cr.P.c., that the authority who passes the order shall mention the grounds. More quoting the incidents is not sufficient. He must apply his mind to the material made available and then arrive at a conclusion as to whether any grounds has been made out and action as requested should be initiated or not…. Merely because there is a dispute, or there is breach of peace in respect of as proper, are not the only circumstances which shall have to be taken into consideration to consider whether the orders under challenge are valid or not but other factors namely (1) Satisfaction, (2) Sufficient materials made available and (3) the ground which compelled to take action which are mandatory requirements are to be considered. This decision is applicable to the case on hand in all fours.

7. A perusal of the impugned order would clearly establish that there was no application of mind. Moreover, what are the materials available that impelled and compelled the authority to pass the order is also not mentioned. The grounds are significantly absent in the order. In the circumstances, I am of the view that the order passed by the lower authority is not based on any ground and as such, it is liable to be quashed.

8. For the reasons stated above, the petition is allowed and the proceedings in M.C.32/99 is liable to be quashed and accordingly, it is quashed. Consequently, Crl.M.P.No.2423 and 2424 of 1999 are closed.

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