Case Note & Summary
The petitioners, Sundar Narayan Nawale and others, filed a Criminal Writ Petition under Articles 226 and 227 of the Constitution of India challenging an order dated 2nd April 2013 passed by the Executive Magistrate, Beed, in proceeding No.213/MTA/Kavi/414. The proceeding was initiated under Sections 145 and 146 of the Code of Criminal Procedure, 1973 (CrPC) based on a report from Beed Rural Police Station regarding a dispute over land Gat No.17 situated at Pali, admeasuring 4.84 Hectares. The police reported that both parties claimed ownership and had filed suits against each other, and there were incidents of quarrel. The Executive Magistrate, without recording satisfaction as to the existence of a likelihood of breach of peace, issued a show cause notice and ultimately directed that the disputed land be taken into possession of the Government under Section 146(1) CrPC. The petitioners contended that the Magistrate had no jurisdiction to pass such an order as the mandatory requirement of Section 145(1) CrPC was not complied with. The court examined the record and found that the show cause notice did not require the parties to put in written statements of their claims, and the Magistrate did not record any satisfaction regarding the likelihood of breach of peace. The court held that the proceedings were without jurisdiction and quashed the order. The court also noted that the Magistrate had not considered the civil suits pending between the parties and had mechanically passed the order. The petition was allowed, and the order of the Executive Magistrate was set aside.
Headnote
A) Criminal Procedure Code - Section 145 CrPC - Jurisdiction of Executive Magistrate - The Executive Magistrate must first record satisfaction that a dispute likely to cause breach of peace exists before initiating proceedings under Section 145 CrPC. In the absence of such satisfaction, the proceedings and subsequent order under Section 146(1) CrPC are without jurisdiction. (Paras 4-6)
B) Criminal Procedure Code - Section 146(1) CrPC - Attachment of Property - Attachment under Section 146(1) CrPC can only be ordered if the Magistrate is satisfied that the case is one of emergency or if he decides that none of the parties was in possession. The order must be based on material on record and cannot be passed mechanically. (Paras 5-6)
C) Criminal Procedure Code - Section 145 CrPC - Show Cause Notice - The show cause notice issued under Section 145(1) CrPC must require the parties to put in written statements of their claims. Non-compliance with this requirement vitiates the proceedings. (Para 5)
Issue of Consideration
Whether the Executive Magistrate had jurisdiction to pass an order under Section 146(1) CrPC without first recording satisfaction as to the existence of a likelihood of breach of peace as required under Section 145(1) CrPC.
Final Decision
The petition is allowed. The order dated 2nd April 2013 passed by the Executive Magistrate, Beed in proceeding No.213/MTA/Kavi/414 is quashed and set aside. Rule is made absolute accordingly.
Law Points
- Jurisdiction of Executive Magistrate under Section 145 CrPC
- Requirement of satisfaction regarding breach of peace
- Attachment under Section 146(1) CrPC
- Non-compliance with Section 145(1) CrPC
- Power of High Court under Articles 226 and 227
Case Details
2013 LawText (BOM) (06) 24
Criminal Writ Petition No. 347 of 2013
Mr. S.S. Thombre for Petitioners, Mr. S.B. Pulkundwar APP for Respondent Nos.1 to 3, Mr. Ramesh V. Naiknavare for Respondent Nos.4 and 5, Mr. E.S. Murge for Respondent Nos.6 and 7
Sundar S/o Narayan Nawale, Kalyan S/o Sundarrao Nawale, Prakash S/o Sundarrao Nawale
The State of Maharashtra, The Executive Magistrate Beed, The Police Inspector Beed (Gramin), Shivaji S/o Dhondiram Nawale, Sau. Jayshree W/o Shivaji Nawale, Hanuman Limbaji Raut, Ganesh Limbaji Raut
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Nature of Litigation
Criminal Writ Petition challenging order of Executive Magistrate under Sections 145 and 146 CrPC
Remedy Sought
Quashing of order dated 2nd April 2013 directing attachment of disputed land
Filing Reason
Executive Magistrate passed order under Section 146(1) CrPC without recording satisfaction as to likelihood of breach of peace as required under Section 145(1) CrPC
Previous Decisions
Executive Magistrate passed order on 2nd April 2013 in proceeding No.213/MTA/Kavi/414
Issues
Whether the Executive Magistrate had jurisdiction to pass order under Section 146(1) CrPC without recording satisfaction as to likelihood of breach of peace under Section 145(1) CrPC
Whether the show cause notice issued under Section 145(1) CrPC complied with statutory requirements
Submissions/Arguments
Petitioners argued that the Executive Magistrate did not record satisfaction regarding breach of peace and the show cause notice did not require parties to file written statements, thus proceedings were without jurisdiction.
Respondents argued that the order was passed after considering police report and there was likelihood of breach of peace.
Ratio Decidendi
The Executive Magistrate must first record satisfaction that a dispute likely to cause breach of peace exists before initiating proceedings under Section 145 CrPC. In the absence of such satisfaction, the proceedings and subsequent order under Section 146(1) CrPC are without jurisdiction. The show cause notice must require parties to put in written statements of their claims.
Judgment Excerpts
The record shows that police informed the Executive Magistrate that the parties were claiming to be owners in respect of the same land and they had filed suits against each other.
The Executive Magistrate issued show cause notice and by order dated 2nd April, 2013, proceeding came to be disposed of and the Executive Magistrate directed to take the disputed land Gat No.17 ... in the possession of Government.
The show cause notice does not show that the parties were required to put in written statements of their claims.
The Executive Magistrate has not recorded any satisfaction that there was likelihood of breach of peace.
Procedural History
The police reported a dispute over land to the Executive Magistrate. The Executive Magistrate issued show cause notice and on 2nd April 2013 passed an order under Section 146(1) CrPC directing attachment of the land. The petitioners challenged this order by filing Criminal Writ Petition No. 347 of 2013 under Articles 226 and 227 of the Constitution of India before the Bombay High Court, Bench at Aurangabad.
Acts & Sections
- Code of Criminal Procedure, 1973: 145, 146
- Constitution of India: 226, 227
