Kalpana.S
(-)
04 April 2008
Proceedings under Section 145 of the Code of Criminal Procedure,1973.
1. The Executive Magistrate can initiate proceedings under Section 145 of the Code of Criminal Procedure, 1973, on an application made by any person or on a Police Report or on the information received.
The main object of proceedings under Section 145 is to secure maintenance of peace and tranquility the breach of which is threatened on account of dispute regarding actual possession of the immovable property.
It is obligatory for the Magistrate to start the proceedings under Section 145 when he received information and is satisfied that a dispute likely to cause breach of peace exists.
2. The proceedings under Section 145 of the Code of Criminal Procedure, 1973, are summary proceedings. The Magistrate must first try and decide the issue as to the jurisdiction raised by the parties. If no such issue is raised by any party, the Magistrate should first see whether he has jurisdiction.
3. Before passing preliminary order, the Magistrate should satisfy himself about the apprehension of breach of peace. The grounds for his satisfaction should be mentioned in the preliminary order.
The Magistrate should pass a preliminary order on his subjective satisfaction after calling for or recording a report or an information about the existence of a dispute which is likely to endanger a breach of the peace.
The Magistrate must state that he himself is satisfied as to the likelihood of breach of the peace and that such satisfaction is based on some material.
4. The recording of sworn statement of the opposite party is neither obligatory nor a condition precedent to the passing of a preliminary order.
5. Attention of the Executive Magistrate is invite4d to the decision of the High Court in the case of Smt. Flori Rodriques and another versus Maxie Jureme Danial cabral and two others, reported in 1978, Mah.L.J.627, wherein it is held that :-
“It is no longer open to the Magistrate to dispose of proceedings under Section 145 of the Criminal Procedure Code, on the basis of affidavits ................it is essential for a Magistrate to see the witnesses for himself in as much as ................the Magistrate has observed without even seeing (the Revision Petitioner's)witness,..................that he is a disabled man and incapable of giving evidence.”
“................although no grievance might have been made in the Lower Court (by the Revision Petitioner's Advocate)............since the Magistrate has not followed the prescribed procedure and it was his duty to follow the prescribed procedure, the whole inquiry has been vitiated and, therefore, the order (passed by the Magistrate disposing of the matter on affidavits) must be quashed...........”.
6. Since section 145 requires consideration of statements, the judgment should show that the Magistrate has considered the statements and has applied judicial mind. merely stating the names of persons swearing statements without discussing as to what they have said is not enough.
The Magistrate must examine statements critically. Mere rejection of them with observation that the statements do not inspire confidence is not proper.
While examining the witnesses, the Magistrate should ascertain the likelihood of breach of peace. He should pursue the evidence led by the parties, asses its value by proper application of mind and then come to the conclusion regarding possession.
The statements filed by the parties must be taken into consideration. The Magistrate must consider all documents and statements before passing any orders under Section 145. But under any circumstance, the Magistrate can not decide the right or rights only on statements filed by the parties. He must receive all such evidence as may be produced and also take such further evidence as may be necessary. Under any circumstance, the case must not be decided merely on statements. The Magistrate can not decide the case on statements alone. He must receive all evidence for determining the question of actual possession of the party claiming it. Every document must be taken into consideration.
7. Attention of the Executive Magistrates is invited to the provisions of Sections 272 to 299 included in Chapter XXIII of the Code of Criminal Procedure, 1973 with regard to the evidence in inquiries and trials, and particularly to the new provision of Section 294 of the Code of Criminal Procedure, 1973, according to which the particulars of the documents filed before the Court shall be included in a list and the Petitioner or complainant or the Opponent, as the case may be, or the Pleader for the Petitioner or the complainant or the Opponent, if any, shall be called upon to admit or deny the genuineness of each document and if the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceedings, without proof of the signature of the person to whom it purports to be signed ; which however, the Court may in its discretion require it to be proved. (Please refer to newly added paragraph 32 of Chapter VI of Criminal Manual, 1980).
8. The Magistrate should note that Section 146(1) of the Code of Criminal procedure, 1973, does not provide for his making a reference in a case to the Civil Court as in Section 146(1) of the Code of Criminal Procedure, 1898.
9. Attention of the Executive Magistrates is invited to the decision of the High Court reported in 79B.L.R-16, in the case of V.K. Rao versus Chandappa Appa Devadiga, wherein the Court has made the following observations :-
“Proceedings under section 145, Criminal Procedure Code, 1898 are summary proceedings. The emphasis is on a speedy disposal of such disputes. The provisions regarding the stating of the grounds are directory and not mandatory.”
“Even if the provisions regarding stating of the grounds are mandatory, noncompliance by the Magistrate of those provisions does not in any way vitiate the final order in absence of proof of prejudice suffered by the parties against whom the order is made in view of the provisions of Section 527 of the Criminal Procedure Code (Corresponding Sections 464 and 465 of the Code of Criminal Procedure, 1973).”
“There should be sufficient compliance of provisions of section 145(1) and there should be something to show that there were grounds before the Magistrate when he passed the preliminary order (that there should be dispute relating to land or water, and it should be likely to cause a breach of the peace). The Magistrate is entitled to arrive at satisfaction on the basis of the Police report or other information which may be only the application of the complainant. The question whether the material before the Magistrate was sufficient or not can not be examined by the High Court as the satisfaction under section 145(1) is that of the Magistrate, Whether on the material before him he should initiate the proceedings or not is his discretion. No doubt, he has to exercise this jurisdiction in accordance with the recognised rules of law in that behalf. The Magistrate has to draw the preliminary order on the basis of the police report or other information. What that “other information” should be is entirely a matter which he has to decide.”
“It is advisable for the Magistrate to record the grounds of his being satisfied as required by section 145 of the Criminal Procedure Code, 1898 separately, but if he is satisfied by reading the police report or the application, it is not obligatory for the Magistrate to record the grounds separately or examine the applicant. First he has to read the report or the application and he may examine the applicant and then pass the preliminary order.”
10. Attention of the Magistrates is also invited to the High Court decision reported in 79 B.L.R.-447 in the Case of Ramchandra Manjunath Prabhu versus Atmaram Gopal Gaikwad, wherein the Court has made the following observation :-
“Proceedings under section 145 of the Code of Criminal procedure, 1973, are for the purpose of preventing breach of peace. What the executive Magistrate is required to do is to find out who was in possession on the date or two months prior to the drawing of the preliminary order.”
11. The Magistrate should bear in mind the scheme of Section 145 of the Code of Criminal Procedure, 1973, and the urgent nature of the proceedings thereunder and see that the preliminary orders under Section 145(1) of the Code are passed with the greatest expedition.
However, in case the Magistrate has not taken up the petition, you can file a writ petition before the High Court directing the Magistrate the petition in accordance with law within a time frame
