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A.M. Kulandaiswamy Vs. S. Sherfuddin - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1977CriLJ2046
AppellantA.M. Kulandaiswamy
RespondentS. Sherfuddin
Cases ReferredP. Mannadha Goundar v. Marappa Goundar
Excerpt:
- .....pending in the civil court regarding the ownership of the site and as there was no likelihood of breach of peace, he did not deem it necessary to take action under section 145, cr. p. c. aggrieved by that order the petitioner has come forward to this court.2. mr. kalyanasundaram, learned counsel for the petitioner contends that the shop was admittedly in the possession of the petitioner, and therefore, the sub-divisional magistrate should have entertained the petitioner's application especially when the petitioner had averred that the employees of the panchayat had trespassed on his property on 30-4-1976 and removed forcibly the shutters of the shop etc. this according to mr. kalyanasundaram, affords basis for the petitioner's contention that there was likelihood of breach of peace.....
Judgment:
ORDER

Natarajan, J.

1. This revision has been preferred by the owner of a fruit shop in Tirumayam, who moved the Sub Divisional Magistrate, Pudukottai. for an order Under Section 145 Cr. P. C. being issued in his favour. It appears Tirumayam Panchayat claimed the site on which the petitioner has put up his shop as belonging to it and that the petitioner had been permitted to put up a superstructure on the site on rental basis. A decree was obtained against the petitioner for arrears of rent and in execution of the decree his moveables were attached. Thereafter on 30-4-1976, according to the petitioner, the menials and scavengers of the panchayat trespassed into his shop and 'without paying heed to his representations, removed forcibly the. plank shutters of the shop and left the shop open'. There was also a rumour in the town that the superstructure also would be demolished shortly. Apprehending further highhanded action by the Panchayat Authorities, the petitioner moved the local Police and also the Superintendent of Police. But, as no relief was forthcoming, he moved the Sub Divisional Magistrate to initiate proceedings Under Section 145 Cri. P. C. The Sub. Divisional Magistrate passed an order stating that as a case was pending in the Civil Court regarding the ownership of the site and as there was no likelihood of breach of peace, he did not deem it necessary to take action Under Section 145, Cr. P. C. Aggrieved by that order the petitioner has come forward to this Court.

2. Mr. Kalyanasundaram, learned Counsel for the petitioner contends that the shop was admittedly in the possession of the petitioner, and therefore, the Sub-Divisional Magistrate should have entertained the petitioner's application especially when the petitioner had averred that the employees of the Panchayat had trespassed on his property on 30-4-1976 and removed forcibly the shutters of the shop etc. This according to Mr. Kalyanasundaram, affords basis for the petitioner's contention that there was likelihood of breach of peace regarding possession of the property. His further contention is that the learned Magistrate has not given reasons for holding that there was no likelihood of breach of peace and on that score also the order is vitiated. In support of this contention he places reliance on P. Mannadha Gounder v. Marappa Gounder : AIR1969Mad411 , where it is stated that before passing an order relating to possession Under Section 145 (6), Cr. P. C. a Magistrate should give reasons why he feels called upon to pass an order in favour of one of the parties to the proceedings Under Section 145 Cr. P. C.

3. Neither of the contentions can be accepted. It is no doubt true there is dispute between the petitioner on the one hand and the Panchayat on the other regarding the ownership and possession of the site. But it is not every dispute that will attract invocation of Section 145, Cr. P. C. by the contesting parties. The dispute must also be attended with a threatened breach of peace. The heading for Chapter 10 in which Section 145, Cr. P. C. occurs is 'Maintenance of public order and tranquillity'.

The Magistrate is not, therefore, concerned with disputes between two or more number of parties, however acrimonious they may be, unless there is a likelihood of such dispute resulting in disturbance of public order and tranquillity and resultant breach of peace. On his own admission it is seen that the petitioner was a helpless witness to the alleged highhanded acts of the employees of the Panchayat and had not attempted to meet force with force. As such there was no danger of the public peace being disturbed or jeopardized and consequently the petitioner is not entitled to invoke Section 145 Cr. P. C.

4. As regards the second contention, it is no doubt true that if an order is passed by a Magistrate in exercise of his powers in favour of one of the contesting parties, the Magistrate should give reasons why he is passing that order. This is because the Magistrate is called upon to pass an order only if there is a threatened breach of peace and public order on account of the dispute over possession of property between two or more number of parties. It is this principle which has been laid down in P. Mannadha Goundar v. Marappa Goundar : AIR1969Mad411 . But that does not mean that a Magistrate should give reasons for passing a negative order Under Section 145, Cr. P. C. It is needless to say that if there was really any apprehended breach of peace, the Magistrate would not have failed to exercise his powers under that section. However genuine the grievance of the petitioner may be, or however rightful his claim to possession over the site may be, he has to seek remedies before other forums and not before the Sub-Divisional Magistrate Under Section 145, Cr. P. C. The petition, therefore, will stand dismissed.


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