High Court Of Judicature At Madras

Muthukrishnan And Another V. Station House Officer, Town Police Station, Karaikal And Another

Crl.O.P.8264 of 1993. 22-09-1994


Petitioners have been shown as opposite party Nos. 2 and 3 in Order No. 38 of 1993 on the file of Sub-Divisional Magistrate, Karaikal, while the second respondent has been shown as opposite party No. 1 in the same proceeding. First respondent, Station House Officer, Town Police Station, Karaikal, has been shown as petitioner, who had chosen to initiate the impugned proceedings under Section 145, Cr.P.C. Learned Executive Magistrate initiated proceedings under Section 145, Cr.P.C. by passing a preliminary order on 3-6-1993. Disputes between parties relate to a temple land and the super-structure thereon.

2. In this petition preferred under Section 482, Cr.P.C. to call for the records and quash the pending proceeding, as not maintainable and an abuse of process of Court, only one ground was urged by petitioner's counsel. He submitted that after noting down the information received, learned Executive Magistrate has stated in the preliminary order that he was satisfied that there was likelihood of breach of peace, but had nowhere stated, the grounds of his satisfaction. In support of his contention, he referred to a judgment of this Court in Karthikeyam v. State, (1990 MLJ (Crl) 149).

3. On this ground of challenge, I have heard second respondent's counsel. He was able to visualise the serious lacuna.

4. It is rather unfortunate that the Executive Magistrates, in spite of settled legal principles, quite often pass preliminary orders, which are not in consoance with law. Lack of application of mind can be the only reason. Executive Magistrates must get themselves equipped with the latest position of law while initiating proceedings under Section 145 Cr.P.C. or Section 107, Cr.P.C. In Karthikeyam v. State (1990 MLJ (Crl) 149), this Court has observed that the twin requirements of satisfaction of the Magistrate and the grounds of satisfaction were different. If a Magistrate had stated that he was satisfied from a police report or other information that breach of peace was likely to be caused, he was recording the fact of his satisfaction, but not the grounds of his satisfaction. The order must indicate the grounds, for finding that there was likelihood of breach of peace. Non-compliance with the provisions of Section 145(1) Cr.P.C. will certainly vitiate the preliminary order, as it will be one passed without jurisdiction.

5. The law laid down in the aforestated case will squarely apply to the instant facts. On that sole ground, the pending proceeding cannot be allowed to survive any longer. It shall stand quashed.

6. However, in the event of likelihood of existence of breach of peace due to disputes between the parties, it will always be open to the Sub-Divisional Magistrate, Karaikal, to apply his mind to the facts available at present and if the circumstances so warrant, initiated fresh proceedings under Section 145, Cr.P.C. after passing a legal and valid preliminary order.

7. Subject to the aforestated observation, this petition shall stand allowed.

Petition allowed.

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