Case Note & Summary
The petitioner, Nandu Keshav Bandodkar, filed a Criminal Writ Petition under Section 482 Cr.P.C. challenging the order dated 15.10.2022 passed by the learned Additional Sessions Judge in Criminal Revision Application No. 27/2021. The revisional court had remanded the matter back to the Sub-Divisional Magistrate for recording evidence as mandated under Section 145(4) and 148 Cr.P.C. The dispute originated from a chapter case filed by the police on 19.06.2012 under Section 145 Cr.P.C. concerning a paddy field, alleging likelihood of breach of peace due to a dispute over ownership and cultivation. The Sub-Divisional Magistrate issued notices to the parties without passing a preliminary order under Section 145(1) Cr.P.C. stating the grounds of his satisfaction. The petitioner argued that the proceedings were no longer subsisting and should be closed. The State Public Prosecutor contended that the initiation itself was illegal as no satisfaction was recorded. The respondent No. 2 argued that the petitioner never challenged the initial order. The High Court examined the record and found that no preliminary order under Section 145(1) Cr.P.C. was passed; the Magistrate directly issued notices. Relying on the decision in Naresh @ Narayan Murlidhar Kabra v. State of Maharashtra, 2001 All MR (Cri) 1847, and Nilesh v. Mahesh (Criminal Writ Petition No. 505/2022), the Court held that drawing a preliminary order under Section 145(1) is sine qua non for initiating proceedings under Section 145 Cr.P.C. In its absence, the entire proceedings are vitiated. The Court rejected the argument that observations in the notice could substitute the preliminary order. Consequently, the High Court quashed the impugned order of the Additional Sessions Judge and set aside the proceedings before the Sub-Divisional Magistrate.
Headnote
A) Criminal Procedure Code - Section 145(1) Cr.P.C. - Preliminary Order - Sine Qua Non - The initiation of proceedings under Section 145 Cr.P.C. requires the Executive Magistrate to pass a preliminary order in writing stating the grounds of his satisfaction that a dispute likely to cause breach of peace exists concerning immovable property. In the absence of such an order, the entire proceedings are vitiated and cannot be sustained. The notice issued to parties cannot substitute the mandatory preliminary order. (Paras 10-21) B) Criminal Procedure Code - Section 145(4) and 148 Cr.P.C. - Remand for Evidence - Validity - Where the initial proceedings under Section 145 Cr.P.C. are invalid due to non-compliance with Section 145(1), the order of the revisional court remanding the matter for recording evidence under Section 145(4) and 148 Cr.P.C. is also unsustainable. The High Court, exercising inherent powers under Section 482 Cr.P.C., can quash such proceedings to prevent abuse of process. (Paras 5, 9, 21) C) Criminal Procedure Code - Section 145 Cr.P.C. - Summary Proceedings - Purpose - The proceedings under Section 145 Cr.P.C. are summary in nature aimed at preventing breach of peace by determining actual possession of immovable property as on the date of the preliminary order. The Magistrate must strictly comply with the procedural requirements under Section 145(1) before proceeding further. (Paras 11, 16)
Issue of Consideration
Whether the proceedings under Section 145 Cr.P.C. initiated by the Sub-Divisional Magistrate are valid in the absence of a preliminary order passed under Section 145(1) Cr.P.C. stating the grounds of satisfaction regarding likelihood of breach of peace.
Final Decision
The High Court allowed the petition, quashed the impugned order dated 15.10.2022 passed by the Additional Sessions Judge, and set aside the proceedings before the Sub-Divisional Magistrate under Section 145 Cr.P.C.
Law Points
- Preliminary order under Section 145(1) Cr.P.C. is sine qua non for initiating proceedings
- Non-compliance with mandatory requirement vitiates entire proceedings
- Notice cannot substitute the preliminary order
- Proceedings under Chapter X Cr.P.C. are summary in nature
