IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 25.08.2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.15851 of 2008 and Crl.R.C.No.888 of 2008 and M.P.No. 1 of 2008 (Crl.R.C.) A.Loganathan .. Petitioner in Crl.O.P.No.15851/08 1.Santhakumari 2.Veerraghava Reddiar 3.Arulananda Raghavan 4.Anantharaman .. Petitioners in Crl.R.C.No.888/08 Vs 1.State represented by The Inspector of Police (L&O) S-11, Tambaram Police Station, West Tambaram, Chennai – 600 045. 2.V.K.Veeraraghava Reddiar .. Respondents in Crl.O.P.No.15851/08 1.Revenue Divisional Officer cum Sub-Divisional Magistrate, Chengalpattu. 2.Vellaiyan 3.Loganathan 4.Arunachalam 5.Anitha Logambal 6.Jegadeeswari 7.Ramesh .. Respondents in Crl.R.C.No.888/08 Prayer in Crl.O.P.No.15851/08: Criminal Original Petition filed under section 482 of Criminal Procedure Code to direct the 1st respondent to ensure the removal of the locks put on the ground and first floor of the premises at No.6/22, Ramakrishnan Iyer Street, West Tambaram, Chennai – 600 045 https://hcservices.ecourts.gov.in/hcservices/ and restore possession of the premises to the petitioner, pursuant to the order dated 23.06.2008 passed by the Revenue Divisional Officer, Chinglepet in proceedings No.Na.Ka.3822/2008 C. Prayer in Crl.R.C.No.888/08: Criminal Revision filed under Section 397 r/w 401 of Criminal Procedure Code to set aside the order in Na.Ka.No.3822 of 2008 C passed by the Revenue Divisional Officer cum Sub-Divisional Magistrate, Chengalpattu dated 23.06.2008. For Petitioner : M/s.Paul and Paul (in Crl.O.P.No.15851/2008) For Petitioners : Mr.V.Raghavacharai (in Crl.RC.No.888/2008) For Respondents : Mr.P.N.Prakash, Senior counsel R1 in Crl.O.P.No.15851/2008)for Paul Nobel Devakumar R2 in Crl.O.P.No.15851/2008) For Respondents : Mr.V.Raghavachari (in Crl.R.C.No.88/2008) M/s.Paul and Paul O R D E R The petitioner (parties referred to as found in Crl.O.P.No.15851/2008) seeks a direction to the 1st respondent to ensure the removal of the locks put on the ground and first floor of the premises at No.6/22, Ramakrishnan Iyer Street, West Tambaram, Chennai and restore possession of the premises to the petitioner, pursuant to the order dated 23.06.2008 passed by the Revenue Divisional Officer, Chinglepet in proceedings No.Na.Ka 3822/2008 C. 2.Such petitioner has preferred a complaint to the 1st respondent on 22.05.2008 informing that he was a tenant under the 2nd respondent and that suddenly on 22.05.2008 at around 1.00 p.m., the 2nd respondent's sons and others damaged the showcase, clothes and dress materials held inside the shop. The petitioner / complainant informs that this had been occasioned since he had refused to pay larger advance and higher rent to the 2nd respondent. The petitioner / complainant also informs of the 2nd respondent being highly influential and politically connected. https://hcservices.ecourts.gov.in/hcservices/ 3.The learned counsel for the petitioner informs that the 2nd respondent's henchmen behaved in a highly unlawful manner and damaged the furniture and other fittings put up by the petitioner in the ground floor and forcibly evicted him and threw the materials in the shop on to the street. The petitioner could not resist, since the 2nd respondent is a politically influential person. The other traders, who were eye witnesses to the atrocity were also unable to effectively help the petitioner in resisting the unlawful actions of the 2nd respondent. It is informed that on the intervention of the traders association, the complaint of the petitioner and his father was accepted. The unlawful incident is said to have taken place in broad daylight in the presence of hundreds of eye witnesses and it is further informed that such incident also received extensive coverage in the local newspapers. The 1st respondent locked the ground floor of the shop for the ostensible purpose of avoiding breach of peace and referred the matter to the RDO for enquiry under Section 145 Cr.P.C. Taking advantage of the unruly situation, the henchmen of the 2nd respondent had placed a lock outside the 1st floor shop, though the petitioner had locked the same from inside towards protecting his material. When the petitioner sought to open the 1st floor, the 1st respondent required him to await the outcome of the reference to the RDO. Before the RDO enquiry, the 2nd respondent took the stand that the premises on the ground floor was never rented out to the petitioner, but that the petitioner had been permitted to keep a few things there for a period of two weeks during Deepavali and again in January 2008. Before the RDO, the 2nd respondent accepted the tenancy in so far as the 1st floor premises is concerned. In the proceedings before the RDO, the statement of the 2nd respondent was that the 1st floor portion of the premises had been locked only to protect the interest of the petitioner, since he had run away, leaving the premises unguarded. The same is found mentioned in the legal notice issued by the petitioner dated 14.06.2008. But, by reply thereto dated 21.06.2008, the 2nd respondent had claimed to have locked the 1st floor premises and thereby dispossessed the petitioner. 4.The RDO under orders dated 23.06.2008 had concluded that the petitioner was in possession of the premises both on the date of incident and prior thereto. The RDO had required the parties to obtain a lease deed in writing and had forwarded the keys of the premises to the 1st respondent. Under notice dated 25.06.2008, the petitioner had required the 1st respondent to furnish the keys of the premises, but the 1st respondent had not opened the premises and put the petitioner in possession as required by law. The unwillingness of the 1st respondent had been complained of before the Commissioner of Police. However, no action was taken. It is contended on behalf of the petitioner that the action of the 1st respondent in not taking steps to put the petitioner in possession despite the finding of the RDO to such effect is clearly illegal. Instead of protecting his interest, the 1st respondent is placing police personnel at the https://hcservices.ecourts.gov.in/hcservices/ premises till date towards preventing the petitioner carrying on his business. This, it is alleged, is being done at the instigation of politically influential persons. It is in such circumstances that the relief is prayed for. 5.Mr.V.Raghavachari, learned counsel for the 2nd respondent easily undoes the order of the RDO by placing reliance on the decision of this Court in Indira and others v. Dr.Vasantha and others, 1991 Cri.L.J 1798, which informs that Section 145(4) Cr.P.C., enables both the parties to adduce oral and documentary evidence and the Magistrate is bound not only to receive all such evidence as may be produced, but also is empowered to take such further evidence, if any, as he thinks necessary and that the Magistrate acting under the Code of Criminal Procedure cannot dispose of a proceeding on the basis of affidavits and therefore, the evidence of witnesses will be essential for deciding the question of possession. Such decision also informs that as Section 145(4) Cr.P.C., contemplated both oral and documentary evidence, reasonable opportunity had to be afforded to the parties to produce documents and witnesses and that the Magistrate is upon a duty to summon such witnesses as may be required by either party. Again, it has been held that the procedure prescribed under Section 145(4) Cr.P.C., was mandatory and the oral evidence adduced would have to be recorded and the documents also would have to be proved according to the rules of evidence and it was only thereafter that the Magistrate could decide the question of possession on the evidence placed before him. The decision of the Magistrate necessarily would have to be arrived at, upon a discussion of the evidence placed before him. 6. Clearly, in the instant case, the order of the RDO does not meet the requirements informed in the decision referred to herein above and accordingly would have to be set aside. However, that would not be the end of the matter. Both the petitioner as also his father had preferred complaints before the 1st respondent who has recorded the same in the Community Service Register on the same date under numbers 118 and 120 of 2008 respectively. While the complaint of the petitioner is brief, that of his father is more detailed and the allegations therein, if true, would make out commission of cognizable offences. As the dispute between the parties has been dealt with under Section 145 Cr.P.C., there has been no investigation whatsoever regards the occurrence. In the opinion of this Court, an investigation is called for upon the complaint of the petitioner's father dated 22.5.2008. As the petitioner apprehends unfair treatment at the hands of the 1st respondent and given the nature of the case and such respondents conduct therein, this Court considers it appropriate that the investigation be conducted by a senior police official. https://hcservices.ecourts.gov.in/hcservices/ 7.Accordingly, this Court directs the registration of the case on the complaint held in the Community Service Register of the respondent under number 120 of 2008 and investigation thereupon by the Assistant Commissioner (Sub Urban), Tambaram. 8.Accordingly, the Criminal Original Petition and the Criminal Revision are disposed of. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar gm/jvm To 1. The Inspector of Police (Law and Order) S-11, Tambaram Police Station, West Tambaram, Chennai 600 045. 2. The public prosecutor, high court, madras 3. The Revenue Divisional Officer-cum- Sub Divisional Magistrate Chengalpattu. 4. The Assistant Commissioner (Sub Urban) Tambaram. Crl.O.P.No.15851 of 2008 and Crl.R.C.No.888 of 2008 and M.P.No. 1 of 2008 (Crl.R.C.) NG(CO) Eu 1.10.2010. https://hcservices.ecourts.gov.in/hcservices/