Case Note & Summary
The applicant, Grasim Industries Limited, filed a Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, challenging an order dated 12th February 2004 passed by the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Mumbai. The impugned order allowed an application under Section 145(5) CrPC filed by the respondents (Mini Gulati, Neelam Bhatia, Mamta Bhatia, and Rita Bhatia) and cancelled the preliminary order dated 7th May 2003 passed under Section 145(1) CrPC. The applicant had originally filed an application under Section 145 CrPC against Shantilal Bhatia and Vinod Bhatia regarding possession of certain property. On the application of the present respondents, they were impleaded as parties. On 7th May 2003, the Magistrate passed a preliminary order under Section 145(1) directing the respondents to attend court and file written statements. The respondents then applied under Section 145(5) for cancellation of the preliminary order, which was allowed by the impugned order. The High Court, after hearing the parties, dismissed the revision application, holding that the Magistrate was justified in cancelling the preliminary order as there was no material on record to show any apprehension of breach of peace at the time of passing the preliminary order or thereafter. The court noted that the preliminary order was passed on the same day the application was filed, without any inquiry, and the applicant had not produced any evidence of breach of peace after the impleadment of the respondents. The revision was dismissed with no order as to costs.
Headnote
A) Criminal Procedure Code - Section 145 - Preliminary Order - Satisfaction of Magistrate - The Magistrate must record satisfaction regarding the existence of an apprehended breach of peace before passing a preliminary order under Section 145(1) CrPC. In the present case, the preliminary order was passed on the same day the application was filed, without any inquiry or material to show apprehension of breach of peace. The High Court held that the Magistrate's satisfaction must be based on material on record, and the cancellation of such an order under Section 145(5) was justified. (Paras 1-5) B) Criminal Procedure Code - Section 145(5) - Cancellation of Preliminary Order - The Magistrate has the power to cancel a preliminary order if he is satisfied that no breach of peace exists. The High Court upheld the cancellation order, noting that the applicant had not produced any material to show apprehension of breach of peace after the impleadment of the respondents. (Paras 4-5)
Issue of Consideration
Whether the learned Magistrate was justified in cancelling the preliminary order passed under Section 145(1) of the Code of Criminal Procedure, 1973, on the application of the respondents under Section 145(5) of the said Code.
Final Decision
The Criminal Revision Application is dismissed. The order dated 12th February 2004 passed by the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Mumbai, cancelling the preliminary order under Section 145(1) CrPC, is upheld.
Law Points
- Section 145 CrPC
- preliminary order
- breach of peace
- satisfaction of Magistrate
- cancellation of preliminary order
- impleadment of parties
