Abdul Rasheed v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 31ST DAY OF JULY 2013/9TH SRAVANA, 1935** **Crl.Rev.Pet.No. 883 of 2013 ()** **-------------------------------** **MC 42/2013 of SUB DIVISIONAL MAGISTRATE COURT,TRIVANDRUM** ## **REVISION PETITIONER(S)/A PARTY:** **------------------------------** **ABDUL RASHEED DISTRICT PRESIDENT, KERALA NADVATHUL MUJAHIDEEN THIRUVANANTHAPURAM DISTRICT RESIDING AT T.C.NO.24/666, YASMIN MANZIL, METTUKKADA THYCAUD PO, THIRUVANANTHAPURAM.** **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENTS/STATE,COMPLAINANT(S)& B PARTY:** **-----------------------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031.** **2. THE ASSISTANT COMMISSIONER OF POLICE, CONTONMENT, THIRUVANANTHAPURAM, PIN CODE 695 001** **3. PARUTHIKUZHI HAKKIM** - **GREEN VIEW, 19/PJ 25552, MUDAVANMUGHAL H.H.C 2952, JAGATHY, THIRUVANANTHAUPRAM PIN CODE 695 014.** **4. SANOFAR BAHUJATH MANZIL, NEAR MASJID NAGAR, AZHIKODE PO THIRUVANANTHAPURAM, PIN CODE 695 564.** **5. MOHAMMED SHERIFF KUNNUMPURATHU VEEDU, CHITTAZHA, VATTAPPARA THIRUVANANTHAPURAM, PIN CODE 695 028.** **6. AL-AMEEN T.C.45/664, PUTHUVEL HOUSE, MILK COLONY ROAD BEEMAPALLY, THIRUVANANTHAPURAM, PIN CODE 695 008.** **....2** ## **Crl.R.P.883/2013** **:2:** ## **7. NOUSAD.J** **T.C.46/449, BEEMAPALLY, THIRUVANANTHAPURAM PIN CODE 695 008** ## **8. MAHEEN ABOOBACKER** **MINI INDUSTRIAL, SUMAYYA POLY FLEX, THOONGAMPARA KATTAKKADA, THIRUVANANTHAPURAM, PIN CODE 695 572.** ## **9. NAJEEBUL MUBEEN** **VETTAVILAKOM VEEDU, ANIYOOR, BALARAMAPURAM THIRUVANANTHAPURAM, PIN CODE 695 501.** **R1 BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN R3-R9 BY ADV. SRI.M.P.MOHAMMED ASLAM** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31-07-2013, ALONG WITH CRRP. 911/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No. of 2013 ()** ## **APPENDIX** ## **REVN. PETITIONER'S EXHIBITS:** **ANNEXURE A- PHOTOCOPY OF THE ORDER IN I.A.2040/13 IN O.S.323/13 OF THE MUNSIFF'S COURT-IV, THIRUVANANTHAPURAM DTD.25.3.2013** **ANNEXURE B: PHOTOCOPY OF THE NOTICE ISSUED BY THE SUB DIVISIONAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** ## **RESPONDENT'S EXHIBITS: NIL** _**OKB.**_ _**TRUE COPY**_ _**P.A. TO JUDGE**_ ## **K.HARILAL, J. --------------------------------------------Crl.R.P. Nos.883 & 911 of 2013 ---------------------------------------------** Dated this the 31[st] day of July, 2013 ## **O R D E R** These two Criminal Revision Petitions are filed challenging composite order passed under Section 145 & 146 of the Criminal Procedure Code in MC.No.42/2013 on the files of the Sub Divisional Magistrate, Thiruvananthapuram. The petitioner in Crl.R.P.No.911 of 2013 is not a party in the impugned order. But, according to him, he is the title holder in possession of the property which is taken in possession by the Receiver by virtue of the impugned order and the respondents are A party and B party in the impugned order. The Revision Petitioner in Crl.RP.No.883/2013 is the present District President of Kerala Nadvathul Mujahideen, Thiruvananthapuram and he is one among A party and respondents are B party in the impugned order. The B party in the proceedings are the adhoc President and other official representatives of the above said Nadvathul Mujahideen. _Crl.R.Ps.883 & 911 of 2013_ **:2:** 2. According to the Revision Petitioner in Crl.R.P.No.883 of 2013, the A party in the impugned order is in possession of the disputed building known by name “Salafi Centre”. But, the B parties who have neither title nor possession over the property made an attempt to obstruct the daily prayers performed in the premises of the 'Salafi Centre' and they approached the Munsiff Court, Thiruvananthapuram and filed OS.No.323/2013 for a permanent prohibitory injunction. The Munsiff Court was pleased to pass an interim injunction against the B party restraining them from creating any documents in respect of Kerala Nadvathil Mujahideen, Thiruvananthapuram District Committee and also trespassing into the District Committee Office in Juma Kuthba in the Salafi Centre. They were in possession of the disputed building peacefully in the light of the interim order passed by the Munsiff Court. While so, the Sub Divisional Magistrate, Thiruvananthapuram issued a notice to the Revision Petitioners on 1.4.2013 directing them to appear before the _Crl.R.Ps.883 & 911 of 2013_ **:3:** Sub Divisional Magistrate on 3.4.2013. The notice refers to law and order problems in connection with the possession of 'Salafi Centre'. But, prior to the date of appearance of the Revision Petitioners, the Sub Divisional Magistrate had, upon the report of the second respondent, passed an order dated 2.4.2013 under Section 145 and also under Section 146 of the Criminal Procedure Code and attached the properties along with the building of the society and further appointed a Special Tahsildar, Land Reforms, as Receiver. Thus, now the Receiver is in possession of the property. 3. The learned counsel for the Revision Petitioners in support of the contentions raised in the Memorandum of Revision Petition contended that the impugned order is vitiated by a procedural irregularity. The impugned order of attachment under Section 146(1) of Cr.PC is made without following the mandatory requirement as contemplated under Section 145(1) of the Cr.PC. By Annexure-B notice, the Sub Divisional Magistrate has _Crl.R.Ps.883 & 911 of 2013_ **:4:** directed the Revision Petitioners and others to appear before him so as to solve law and order problems in connection with 'Salafi Centre'. But, Annexure-B is not a preliminary order as contemplated under Section 145(1) of the Cr.PC. Therefore, the impugned order is passed without following the legal mandates under Section 145(1) of the Cr.PC. This is the main ground raised by the counsel for the Revision Petitioner assailing the impugned order. 4. The Revision Petitioner in Crl.R.P.No.911/2013 is admittedly not a party in the impugned proceedings and the order passed thereunder. According to this petitioner, the Revision Petitioner is the actual title holder in possession of the disputed property and at the time of passing the impugned order, the Revision Petitioner was in absolute possession and enjoyment of the property. But, without affording an opportunity of being heard, the Sub Divisional Magistrate passed the impugned order and thereby handed over the possession of the property to the Receiver appointed under the order. It is averred in the _Crl.R.Ps.883 & 911 of 2013_ **:5:** petition that, the office of the Thiruvananthapuram District Committee of the petitioner society is located in the disputed Kerala Salafi Centre; but only one room having an area of 150 Sq.ft. had been allotted by the State Committee for temporary use of the Thiruvananthapuram District Committee. In view of the persistent and continuous antiorganisational activities and indiscipline of certain members and office bearers of the Mujahideen Thiruvananthapuram District Committee, the State Executive of the petitioner society suspended the Thiruvananthapuram District Committee and appointed an adhoc committee in place of the District Committee. The decision in that regard was taken by the petitioner society on 2.1.2013 and communicated the same to respondents 1 and 2, who as per the said decision, ceased to be the Secretary and the President of the Thiruvananthapuram District Committee. According to the Revision Petitioner, neither the respondents 1 and 2 nor any of the other members of the suspended committee have challenged the _Crl.R.Ps.883 & 911 of 2013_ **:6:** decision of the Revision Petitioner removing them from the office. Therefore, the said decision has now become final and they have neither right or possession over the room which was allotted to the District Committee and which forms a part of the building complex. On 29.3.2013 at about 10.30 am., the respondents 1 and 2 along with their supporters and associates barged into the building where Kerala Salafi Centre is functioning, broke open locks and looted money, valuable records and fled away. They also brutally attacked and manhandled, and caused voluntary hurt to Al-Ameen Moulavi, the Assistant Imam, Abdul Majeed and M.Muhammed employees of Kerala Salafi Centre. Though, the alleged incident was reported to the police, the police have not registered a crime. Therefore, they have filed CMP.No.1141/2013 before the Judicial Magistrate of the First Class-III, Thiruvananthapuram and in the said proceedings, the complaint was referred to police under Section 156(3) of Cr.PC and the same is under investigation. Now it is learned that a crime was _Crl.R.Ps.883 & 911 of 2013_ **:7:** registered against the first respondent and 13 others. The crux of their contentions is that there was no circumstances warranting exercise of jurisdiction under Sections 145 and 146 of the Cr.PC. The materials placed before the Sub Divisional Magistrate do not disclose any title, possession or right of any of the parties to the proceedings; but unambiguously discloses title, right or possession of the Revision Petitioner. But, under the guise of the impugned order purportedly passed under Sections 145 and 146, the Sub Divisional Magistrate has appointed a Receiver and handed over possession to the Receiver. The jurisdiction under Sections 145 and 146 of Cr.PC can be exercised only when there is a dispute with regard to the right and possession of the property. In the absence of any dispute with regard to the right and possession of the property of the Revision Petitioner, the learned Sub Divisional Magistrate has no power or authority to invoke power under Sections 145 and 146 of Cr.PC and there was no emergent situation warranting exercise of jurisdiction. _Crl.R.Ps.883 & 911 of 2013_ **:8:** 5. The learned counsel for the Revision Petitioners advanced argument in support of the contentions raised in the respective Revision Petitions. The learned counsel for the Revision Petitioners drew my attention to the scheme provided under Section 145 and 146 of the Cr.PC and submitted that a composite order under Section 145 and 146 could not have been passed. According to the learned counsel, an order of attachment can be passed only after passing a preliminary order under Section 145(1). Without passing an order under Section 145(1), an order attaching the property could not have been passed. In support of the said arguments, the learned counsel for the Revision Petitioner in Crl.R.P.No.911 of 2013 cited **Mrs.Thamaraiammal & another v. The Executive Magistrate-cum-Revenue Divisional Officer, Chengalpettu & another** (2007 Crl.LJ 1885), **Shanti Kumar Panda v. Shakuntala Devi** (2004(1) SCC 438) and **Janaki Ramachandran & others v. The State** (1989 Crl.LJ 590). _Crl.R.Ps.883 & 911 of 2013_ **:9:** 6. Another point highlighted by the learned counsel for the Revision Petitioner is that the impugned order was passed without affording an opportunity of being heard to the title holder in possession of the property. Though the impugned order itself says that the Revision Petitioner in Crl.R.P.No.911 of 2013 is the title holder of the property, no enquiry was conducted in that respect. The learned counsel for respondents 3 to 9, who are the B parties in the impugned order also advanced argument highlighting the procedural irregularity committed by the Sub Divisional Magistrate. According to the learned counsel also, a composite order could not have been passed under the scheme provided under Section 145 and 146. On that point, the learned counsel for the respondents 3 to 9 also supported the argument of both Revision Petitioners. It is also submitted that the B parties were also not parties in the original suit pending before the civil court and they are also unaware about the said proceedings. According to them, no opportunity of being heard was given to them also _Crl.R.Ps.883 & 911 of 2013_ **:10:** before passing the impugned order. 7. I have given my anxious consideration to the argument advanced at the Bar. In view of the rival submissions, the question to be considered is whether there is any illegality or impropriety in the impugned order under challenge. At the out set it could be seen that, though these two Revision Petitions are filed by the rival claimants, they are seen unanimous at one point. According to all the parties, the impugned order was passed in violation of the procedure contemplated under Section 145 and 146 of the Cr.PC. Therefore, the preliminary question to be considered is whether there is any procedural illegality or impropriety in passing of the impugned order. Obviously, the cause title of the impugned order itself shows that the order is a composite order passed under Section 145 and 146 of the Cr.PC. 8. Therefore, it is clear that an order has been passed under Section 146(1) without passing an order under Section 145(1) Cr.p.C. I am of the considered view _Crl.R.Ps.883 & 911 of 2013_ **:11:** that there is much force in the arguments advanced by the learned counsel for the revision petitioners in both revision petitions and the respondents 3 to 9. Going by Sections 145 & 146 of the Cr.P.C. no doubt, an order under Section 146 could have been passed only after complying all the procedures laid down under Section 145(1) to 145(4). Section 145(4) provides the procedure to be complied by the Sub Divisional Magistrate before passing an order under Section 146(1). Before passing an order under Sec.146(1) the parties could have been given an opportunity to substantiate their contentions with evidence and it is incumbent upon the Sub Divisional Magistrate to receive all such evidence as may be produced by them and take such further evidence, if any. An order under Section 145(1) should have been given stating all necessary details and grounds of satisfaction arrived at by the Sub Divisional Magistrate before further proceedings. 9. The principle that can be culled out from all these decisions are one and the same; i.e, a composite _Crl.R.Ps.883 & 911 of 2013_ **:12:** order under Sections 145(1) and 146 should not have been passed and before passing an order under Section 146(1), all the parties to the disputed issue should have been given an opportunity of being heard and also to substantiate their contentions in evidence. Similarly, an order under Section 146(1) can be passed if the Sub Divisional Magistrate is unable to satisfy himself as to which of the disputed parties was then in such possession of the subject to dispute. So, to find out who was in actual possession of the disputed building, a full-fledged enquiry as provided under Section 145(4) should have been made before passing an order attaching the property. Going by the impugned order, I am of the opinion that no such enquiry as contemplated under Section 145(4) was made by the Sub Divisional Magistrate. Therefore, I am of the considered view that at all points the impugned order is vitiated by procedural irregularity. I am inclined to set aside the impugned order and I do so. 10. But, going by the impugned order and also in view of the rival contentions, I am of the opinion that there _Crl.R.Ps.883 & 911 of 2013_ **:13:** is a situation causing breach of peace in connection with the rival claims raised over the disputed property. The order itself shows that the order was passed on the basis of the report filed by the Deputy Commissioner of Police, Thiruvananthapuram seeking invocation of jurisdiction under Section 145 of the Cr.P.C. Therefore, I am of the opinion that, though I set aside the impugned order, the present Receiver should continue in possession of the disputed property for the timebeing. 11. The Sub Divisional Magistrate is direted to conduct a full-fledged enquiry as provided under Section 145(4) of the Cr.P.C. within a period of two months from the date of receipt of a copy of this order and notice shall be issued to all the parties connected with the dispute and the Sub Divisional Magistrate shall provide sufficient opportunity to the parties to substantiate their contentions in evidence. The Receiver shall be in possession of the disputed building till the disposal of the proceedings. The Sub Divisional Magistrate, after enquiry, shall pass an _Crl.R.Ps.883 & 911 of 2013_ **:14:** order under Section 145(6)(a) declaring the party to be entitled to possession and shall hand over the possession of the disputed property and building to such person to be declared on enquiry. Needless to say, if the Sub Divisional Magistrate decides that none of the party was then in such possession as is referred to in Section 145 or if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute, he would be free to pass an order afresh under Section 146(1) of Cr.P.C. The Revision Petition is disposed of accordingly. Sd/- **(K.HARILAL, JUDGE)** Kvs/okb.