MANIKAM REDDY AND OTHERS Vs. YAMANI AND OTHERS
LAWS(APH)-1963-12-14
HIGH COURT OF ANDHRA PRADESH
Decided on December 23,1963

Manikam Reddy And Others Appellant
VERSUS
Yamani And Others Respondents

JUDGEMENT

ANANTANARAYANA AYYAR,J. - (1.) This is a reference by the learned Chief City Magistrate-cum-Additional Sessions Judge, Hyderabad recommending that orders of the learned Munsif Magistrate, Hyderabad West, dated 17-10-1963 be set aside and that the Munsif Magistrate be directed to proceed with the enquiry pending before him in M. C. No. 24 of 1963 after issuing preliminary order as contemplated under Section 145(1) Criminal Procedure Code.
(2.) The relevant facts are as follows : Amar Jabari and another (hereafter referred to as party No. 1) filed a petition disclosing material contemplated under Section 145 Criminal Procedure Code before the competent Executive Magistrate (hereafter referred to for convenience as the Revenue Divisional Officer). He called for report from the Police and passed an order dated 14-10-1958 for attachment. Subsequently, parties produced material before him and he passed a final order on 11-12-1958 declaring the first party to be in possession of certain properties, the second party who were respondents in the petition under Section 145 Criminal Procedure Code to be in possession of certain other properties and some third parties, who were not parties to the petition, to be in possession of some properties. He ordered delivery of the properties and accordingly, delivery was effected on 18-12-1958. The first party felt aggrieved with this order and filed Crl. R. P. No. 29 of 1959 before the learned Additional Sessions Judge, Hyderabad. The latter made a reference to this Court saying that the final order of the Revenue Divisional Officer had to be set aside because of various defects; one of them was that there was no preliminary order passed as contemplated under Section 145 Criminal Procedure Code. This Court accepted the reference in Crl. R. C. No. 287 of 1959 and passed order dated 13-12-1960 as follows : "The order passed by the First Class Magistrate Western Division, Hyderabad, in proceedings before him under Section 145 Criminal Procedure Code has been questioned on the ground that there was no preliminary order as contemplated under Section 145 Criminal Procedure Code and that consequently no statements were filed by the parties ........... As the order of the First Class Magistrate suffers from these defects, in my view, it is sustainable. The reference is accepted. The order of the First Class Magistrate is set aside. The First Class Magistrate will take the case on file and dispose of it according to law." Subsequently, the Revenue Divisional Officer and First Class Magistrate (Executive) Hyderabad West, Shri T. Narayana Reddy, passed an order dated 4-11-61 as follows : "........the Hon'ble High Court set aside the order of the First Class. Magistrate on the, ground that the (no) preliminary order was passed as contemplated under Section 145 Criminal Procedure Code and that no enquiry was made about which party was in possession............. .. .. .. .. .. .. .. .. .. .. .. .. Under G. O. No. 3106, Public (Separation) Department dated 9th September 1949 cases under Section 145 Criminal Procedure Code were allocated under the head 'concurrent jurisdiction of both Executive and Judicial Magistrates'. In para 18 of the same G. O. it was clarified that where an enquiry becomes necessary the case will be transferred by the Magistrate to the appropriate Sub Divisional Magistrate ......... .. .. .. .. .. .. .. .. .. .. .. .. In this case the parties are contesting about the actual possession and an enquiry is necessary. Enquiry in such cases will therefore be conducted by the Judicial Magistrate. It is correct to hear the case in this Court. ......... The case may be transferred to the District Magistrate, Hyderabad for onward transmission of this case to the M. M. Court, West Hyderabad for disposal." The word 'the' and the word 'no' is found in the original order itself. Obviously, the word 'the' is a mistake for the word "no" which must have been meant and which has been put by me within brackets. Unfortunately, though the learned Revenue Divisional Officer and first class Magistrate (Executive) Hyderabad West clearly understood the order of this Court as having set aside the order of the First Class Magistrate on the ground that no preliminary order had been passed as contemplated under Section 145 Criminal Procedure Code, he failed to rectify the defect by passing a preliminary order. He only considered the ground that no enquiry had been made us to which party was in possession and observed, regarding that ground, that when enquiry became necessary the case had to be transferred to the District Magistrate for transmission to the appropriate Sub Divisional Magistrate. The District Magistrate also failed to notice this defect in the order of the First Class Magistrate and transferred the case to the file of the Sub-Divisional Magistrate namely, the Munsif Magistrate, Hyderabad West.
(3.) But the second party noticed this defect and filed M.P. No. 30 of 1963 before the learned Munsif Magistrate praying for passing of A preliminary order. The learned Munsif Magistrate rejected that petition by his order dated 17-10-1963 in which he observed as follows:- "On a perusal of the M.C. File it is evident that the learned Executive 1st Class Magistrate did pass the formal preliminary order as required under section 145 Criminal Procedure Code yet on 14-10-58 he made an order that he was satisfied that a dispute likely to cause breach of the peace existed concerning the land in question between the parties so the land should be attached and on 17-10-58 he directed to issue the summons to the parties in compliance of which the parties filed the written statements and affidavits. Under G. O. 3106 cited above the Executive Magistrate has to satisfy himself only this much that whether there existed a dispute likely to cam's a breach of the peace and the rest of the enquiry has to be made by the Judicial Magistrate regarding possession. It is no doubt true that the Executive Magistrate must have made an order to this effect also that the parties should put in such documents or adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of their claim, yet in my opinion the order directing the parties to put in written statement and affidavits if any can be made now by the Judicial Magistrate as the Hon'ble High Court directed the Magistrate making the enquiry to dispose of the case according to law. Had the Executive Magistrate taken the cognizance of the case and satisfied himself about the dispute likely to cause breach of the peace then this Judicial Court would have taken the cognizance of this case and, pass an order under Section 145(1) Criminal Procedure Code directing the parties to put in further written statements.";


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