IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.551 of 2006 and C.M.P.No.3336 of 2006 Pratapchand Baid ... Petitioner vs. 1.M.Naina Mohammed 2.K.Jahir Ahammed 3.V.M.Mohammed Yusuf 4.O.M.Abdul Rasak 5.A.K.Jaruk Ali 6.E.M.Ahmmed Ali 7.M.A.Yusuf Aroon 8.J.Seeni Mohammed 9.P.L.M.Yasin 10.Y.Iqbai 11.M.Mohammed Jahir 12.J.Illias 13.A.Mohammed Yusuf 14.Md.Gori @ Abubacker 15.A.Haneefa 16.E.Mohammed Yasin 17.A.S.Hameed 18.M.Abdul Kayum 19.M.Jaffar Sadiq 20.Jumma Mosque, rep.by its Mutavalli M.Zaniulabideen ... Respondents 20th respondent impleaded as per the order of this Court dated 12.2.2007 in M.P.No.4394 of 2006 21.The Inspector of Police, E1 Police Station, Kutchery Road, Mylapore. Chennai-600 004. Impleaded the 21st Respondent as per order of this Court dated 12.2.2007 in M.P.4522/06 https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Section 397 r/w 401 of Cr.P.C. against the order passed in A.Comp.No.A5/3658/2006 dated 30.3.2006 passed by the Sub Divisional Magistrate, Chennai Collectorate, Chennai. For Petitioner : Mr.C.Seethapathy For Respondents : Mr.A.Nissar Ahmed for R1 to R9 Mr.V.Sairam for R20 Mr.R.Muniyapparaj,G.A. For Sub-Divisional Magistrate ORDER Challenging and impugning the order dated 30.3.2006 passed by the Sub Divisional Magistrate, Chennai Collectorate, Chennai. this criminal revision case is focussed. 2. Compendiously and concisely, the facts absolutely necessary and germane for the disposal of this criminal revision case would run thus:- (a) Consequent upon the report submitted by the police officer concerned to the Collector relating to the alleged trepidation prevailing in Mylapore area in connection with a civil dispute, so to say, regarding right of path way leading to the Mosque, the Collector made over the matter to the Sub Divisional Executive Magistrate, Chennai, for dealing with it, under Section 145 of Cr.P.C. (b) Whereupon, the Sub Divisional Executive Magistrate issued summons dated 15.2.2006 to the parties concerned to appear for enquiry and thereafter, he passed the impugned order dated 30.3.2006. 3. Challenging and impugning, animadverting and questioning the legality and propriety of the order passed by the Magistrate, the revision petitioner filed this revision on various grounds. 4. During the pendency of the criminal revision, R20 also has been impleaded. 5. Heard the learned counsel for both sides as well as the learned Government Advocate. 6. The point for consideration is as to whether there is any perversity or non-application of law in passing the impugned order dated 30.3.2006. 7. At the outset itself I put the question to the learned Government Advocate as well as the Advocates appearing on either side as to whether the Magistrate passed any preliminary order under Section 145(1) of Cr.P.C., for which, no one can produce any https://hcservices.ecourts.gov.in/hcservices/ such order. The records as brought by the learned Government Advocate would also do not reveal anything about such passing of the preliminary order. 8. At this juncture, I would like to extract Section 145(1) of Cr.P.C.for ready reference: "Sec.145(1) of Cr.P.C.:Procedure where dispute concerning land or water is likely to cause breach of peace (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute."(emphasis supplied) 9. A plain reading of the above Section would display and demonstrate, express and expatiate, convey and portray that at the first instance the Magistrate, based on the materials placed before him by the police or upon other information, should get himself satisfied about the trepidation or situation getting snowballed in a particular area, which might go out of control and after recording his satisfaction objectively to the extent possible, he should call upon the rival parties concerned in such dispute to attend the Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims in respect of the actual possession of the subject matter of the dispute concerned. 10. But in this case, the learned Magistrate has miserably failed to adhere to Section 145(1) of Cr.P.C. But, on the other hand, he simply issued the summons, the body of it is extracted hereunder for ready reference: "Whereas as enquiry under Section 145 of Cr.P.C.in connection with the dispute over the land measuring 1176 sq.ft.in Mylapore-Triplicane Taluk bearing Survey No.2081 of Mylapore Village over the enjoyment of land and building at Door No.58-59,Bazaar Road, Mylapore, Chennai-4 has been ordered and whereas it appears to me that you are likely to give material evidence. You are hereby summoned to appear before this Court on 24.2.2006 at 3.00 p.m.to testify that you know concerning the matter of the said complaint." The said summons cannot be equated to the preliminary order as https://hcservices.ecourts.gov.in/hcservices/ contemplated under Section 145(1) of Cr.P.C. and in fact no preliminary order, as per law has been passed by the Magistrate. 11. It is therefore clear that passing a preliminary order is sine qua non for passing the subsequent order, so to say, the impugned order herein. Hence, I would like to set aside the impugned order of the Magistrate with the observation that if still the Magistrate feels that trepidation or law and order problem is prevailing in that area concerning the same subject matter, it is open for him to proceed under Section 145 of Cr.P.C. The criminal revision case is ordered accordingly. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar msk To 1.The Sub Divisional Magistrate, Chennai Collectorate, Chennai. 2.The Inspector of Police, E1 Police Station, Kutchery Road, Mylapore. Chennai-600 004. 3.The Public Prosecutor, High Court, Madras. 4.The Section Officer, Criminal Section, High Court, Madras. 1 cc To Mr.N.A.Nissar, Advocate, SR.34365 1 cc To Mr.P.R.Raman, Advocate, SR.34328 1 cc To Mr.V.Sairam, Advocate, SR.34543 Crl.R.C.No.551 of 2006 kr(co) pmk.17.8.2009 https://hcservices.ecourts.gov.in/hcservices/