IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 Crl.Rev.Pet.No. 2931 of 2003 ----------------------------------------------- ORDER DATED 22/10/2003 IN MC.8/2//2003 of ADDL. SUB DIVISIONAL OFFICER, KILTAN ISLAND .................... PETITIONERS/DEFENDANTS: 1. PACHAKAD KUNHIKOYA, S/O LATE KUNNEL MOHAMMED KUNHI, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP. 2. PACHAKAD KADEESHOMMABI, D/O DO. DO. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS/PLAINTIFFS: 1. SMT.CHERIYABI KANNIPURA, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP. 2. REVENUE ADDL. SUB DIVISIONAL OFFICER, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP. 3. UNION TERRITORY OF LAKSHADWEEP, REP. BY ITS ADMINISTRATOR, LAKSHADWEEP. BY ADV. SRI.S.RADHAKRISHNAN FOR R2,3 SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 SMT.T.RESMI DAMODARAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.2931 of 2003 -------------------------- ORDER As per order dated 22.10.2003 Additional Sub Divisional Officer, Kiltan Island passed an order, purporting to be under Section 145 of Code of Criminal Procedure, restraining the petitioner, who is shown as the defendant in the proceedings, from plucking coconuts from the trees in Sy.No.86/6 on behalf of his sister, as Smt.Pachakad Kadeeshommabi has no right and title on the aforesaid land. This revision is filed challenging that order. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Section 145 of Code of Criminal Procedure enables the Executive Magistrate on being 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 CRRP 2931/03 2 jurisdiction, to 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. Sub-section (4) of Section 145 of Code of Criminal Procedure provides that Magistrate, on appearance of the parties, shall with reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence,, if any as he thinks necessary and if possible, decide whether and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute. 4. The impugned order was passed in violation of the provisions of Section 145 of Code of CRRP 2931/03 3 Criminal Procedure. It was passed as if Additional Sub Divisional Officer was considering a suit for permanent prohibitory injunction and identical to an order in an application for temporary injunction was passed. There is no whisper in the order that there is any likelihood of a breach of peace exists in the property, which is a conditional precedent for initiating proceedings under Section 145 of Code of Criminal Procedure. In the absence of that mandatory condition, the order is illegal and can only be set aside. Revision is allowed. Order dated 22.10.2003 is set aside. But, it does not mean that Additional Sub Divisional Officer cannot take proceedings under Section 145 of Code of Criminal Procedure if there exists apprehension of breach of peace, in accordance with law. 29th July, 2010 (M.Sasidharan Nambiar, Judge) tkv