Midhun Muraleedharan and Sajeevan v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 1[ST] DAY OF AUGUST 2023 / 10TH SRAVANA, 1945`** ``` CRL.MCNO.4664OF2023 AGAINSTTHEORDER/JUDGMENTINMC75/2023OF SUB.DVL.MAGISTRATE,KOLLAM ``` ``` PETITIONER/S: ``` ``` 1MIDHUNMURALEEDHARAN AGED36YEARS S/OMURALEEDHARAN, PRESIDENT,KERALAVEERASHAIVASABHA, ANCHALSAKHA,KOLLAMDISTRICT RESIDINGATMIDHUNBHAVAN,THAZHAMMEL, - ANCHALP.O.,KOLLAMDISTRICT,PIN691306 2SAJEEVAN AGED48YEARS S/OSADANANDAN, SECRETARY,KERALAVEERASHAIVASABHA, ANCHALSAKHA,KOLLAMDISTRICT RESIDINGATTHOTTATHILVEEDU,THAZHAMMEL, - ANCHALP.O.,KOLLAMDISTRICT,PIN691306 BYADVA.R.DILEEP ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYPROSECUTOR, HIGHCOURTOFKERALA, - ERNAKULAM,PIN682031 2SUBDIVISIONALMAGISTRATE/REVENUEDIVISIONALOFFICER - PUNALUR,KOLLAMDISTRICT,PIN691305 3VILLAGEOFFICER - ANCHALVILLAGE,KOLLAMDISTRICT,PIN691306 4SURESHG. AGED48YEARS S/OGOPINATHAN, PRESIDENT,ALLINDIAVEERASHAIVASABHA, ANCHALBRANCH,KOLLAMDISTRICT, RESIDINGATVENGAVILAVEEDU,THAZHAMMEL, - ANCHALP.O.,KOLLAMDISTRICT,PIN691306 ``` ``` CRL.MCNO.4664OF2023 ``` ``` 2 ``` ``` 5PADMAKUMARY AGED52YEARS W/OMOHANAN, SECRETARY,ALLINDIAVEERASHAIVASABHA, ANCHALBRANCH,KOLLAMDISTRICT, RESIDINGATPARUTHIVILAVEEDU, - ALAYAMONB.O.,ANCHAL,KOLLAMDISTRICT,PIN691306 ``` ``` BYADVS. VINODKUMARPOOVATHUMMOOTTIL PARVATHIVENUGOPAL(K/1331/1998) REJIRAMACHANDRAN(R-516) HARITHAHARIDAS(K/590/2020) ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFOR ADMISSIONON01.08.2023,THECOURTONTHESAMEDAYPASSED THEFOLLOWING: ``` ``` CRL.MCNO.4664OF2023 ``` ``` 3 ``` ## **ORDER** This petition is filed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners herein are the President and Secretary of the Anchal Branch of the Kerala Veera Shaiva Sabha. They have approached this Court, challenging the order dated 29.05.2023 in M.C. No. 75/2023 passed by the Sub Divisional Magistrate, Punalur. 3. To assail the impugned order, the contentions advanced by Sri. A.R. Dileep, the learned counsel appearing for the petitioners as under: There was no cause of action for the jurisdictional Magistrate to invoke the powers under Sections 145 and 146 of the Code. According to the learned counsel, as per the provisions of Section 145 of the Code, the Executive Magistrate, on being satisfied from a report of a Police Officer or upon any other information that disputes likely to cause a breach of peace exists concerning any land or water or boundaries thereof, within his local jurisdiction, he is required to make an order in writing stating the grounds of being so satisfied and requiring the parties concerned in such disputes to attend the court and ``` CRL.MCNO.4664OF2023 ``` ``` 4 ``` to put in written statements of their respective claims with respect to the fact of actual possession of the subject of dispute. The learned counsel submits that only after passing a preliminary order under Section 145(1) of the Code, can the Sub Divisional Magistrate have any power to attach the subject of dispute and to appoint a receiver. Referring to Annexure-1 notice, it is submitted that there is no provision in the Code for issuance of notice in the nature of Annexure-1 and to call for the parties to appear before the said Magistrate. In order to substantiate his contention that the order is illegal and violative of procedure prescribed under the Code , reliance is placed on the law laid down by this Court in **Vinod & ors. v. State of Kerala[1]** . 4. The learned counsel appearing for the party respondents submitted that it was after satisfying himself that there is a likelihood of the dispute between the rival parties spiraling into an incident likely to result in a breach of peace that the learned Sub Divisional Magistrate acting on the report of the Police Superintendent had issued Annexure-A1 notice, which is followed up with Annexure-A2 order. According to the learned counsel, in view of the urgency, the learned Sub Divisional Magistrate was well justified in passing such an order. > 1 2014 (3) KLT 818 ``` CRL.MCNO.4664OF2023 ``` ``` 5 ``` 5. The contention of the party respondent is supported by the learned Public Prosecutor, who submits that the orders passed by the Sub Divisional Magistrate is in order. 6. I have considered the submissions advanced. ## 7. Section 145(1) of the Code reads as under: 145. 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.” 8. Annexure-1 is merely a notice calling upon the parties to appear on 24.05.2023. In the said notice mention is made about the report of the Superintendent of Police that there is a likelihood of a breach of peace. There is no material to suggest that the Executive Magistrate had satisfied himself that the dispute likely to cause a breach of peace exists concerning any land or water or boundary thereof within his jurisdiction. ``` CRL.MCNO.4664OF2023 ``` ``` 6 ``` 9. In this context, it would be profitable to take note of the observations made by a learned Single Judge of this Court in **Thankayyan v. Perumal Nadar** (1977 KLT 511). It was observed as under: “The section provides a summary remedy and is intended to meet an emergent situation and to avoid a breach of the peace occurring. On a careful reading of S.145 as a whole, particularly sub-s.(1), it could be seen that the very foundation of an action under the sub-section is the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace existed on the date of the preliminary order, concerning the possession to any land or water or boundaries thereof situated within his or her local jurisdiction. There is nothing in the section to indicate that the Executive Magistrate is bound to pass a preliminary order as enjoined under sub-s.(1) of S.145 of the Code, immediately on receipt of a report of the police or complaint or other information that a dispute regarding the possession of an immovable property exists and that such dispute is likely to cause a breach of the peace. The section does not authorise or confer jurisdiction on the Magistrate to initiate proceedings merely on the strength of the complaint or the police report or other information about the likelihood of a breach of peace on account of a dispute regarding the possession of an immovable property. It is only on being satisfied that there is a real dispute existing concerning the possession of immovable property and that such dispute is likely to cause a breach of the peace, as is clear from sub-s.(1), that the Executive Magistrate gets jurisdiction to initiate proceedings and pass a preliminary order under S.145 of the Code. This satisfaction he or she may get from a report of the police officer or upon other information. The magistrate must be satisfied of the necessity to take action under S.145 of the Code before a ``` CRL.MCNO.4664OF2023 ``` ``` 7 ``` preliminary order is passed and it cannot be said that in every case such satisfaction would automatically follow from a report of the police officer or upon other information. The question whether on the materials before the Magistrate, he or she should initiate proceedings or not is in his or her discretion and this discretion, no doubt, has to be exercised in accordance with the recognised rules of law in this regard. ...........” ## 10. Admittedly, in the case on hand, no order as contemplated under Section 145(1) of the Code has been issued. ## 11. In **Lilly Franklin v. Wilson** (1977 KLT 871), a learned Single Judge of this Court has held as under: “The expression “after making the order' in S.146 (1) makes it clear that proceedings under S.145(1) should precede the order attaching the property, S.146(1) does not contemplate a simultaneous exercise of jurisdiction under S.145(1) and S.146(1). The order under S.145(1) becomes complete only when the Magistrate puts his signature therein. It is only, thereafter that he is expected to consider whether it is a case of emergency requiring attachment of property. Since the order attaching property in the instant case did not satisfy the above requirements, it was rightly set aside by the Additional Sessions Judge.” ## The principles laid down in **Thankayyan and Lilly Franklin** ## (supra), were followed in **Vinod** (supra). ``` CRL.MCNO.4664OF2023 ``` ``` 8 ``` 12. In the case on hand, as no proceedings under Section 145(1) of the Code preceded the Annexure-A2 order passed under Section 146(1), the said order cannot be said to have passed in accordance with the provisions of the law. In that view of the matter, I hold that Annexures-1 and 2 have been issued in utter disregard of the law under Sections 145 and 146 of the Code. 13. In that view of the matter, the petitioners have made out a case for interference. This petition will stand allowed, and the following directions are issued. - a) Annexure-1 notice and Annexure-2 order passed by the 2nd respondent are quashed. - b) There will be a direction to the 3rd respondent to forthwith hand over possession of the building attached in terms of Annexure-A2 order. - c) This order will not stand in the way of the initiation of fresh proceedings strictly in terms of the provisions of the Code of Criminal Procedure. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` CRL.MCNO.4664OF2023 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 4664/2023`** ## **`PETITIONER ANNEXURES`** |`Annexure `|`1`|`A TRUE COPY OF THE NOTICE NO. I/161057 /2023`| |---|---|---| |||`DATED 23.05.2023 OF THE 2ND RESPONDENT SERVED`| |||`ON THE PETITIONERS THROUGH THE INSPECTOR OF`| |||`POLICE, ANCHAL`| |`Annexure `|`2`|`A TRUE COPY OF ORDER NO. MC 75/23 DATED`| |||`29.05.2023 PASSED BY THE 2ND RESPONDENT`| |`Annexure `|`3`|`A TRUE COPY OF THE PLAINT IN O.S.NO. 481/ 2022`| |||`ON THE FILE OF THE MUNSIFF'S COURT, PUNALUR`|