Sandu Keshavsingh Shinde and ors. Vs. Ramsingh Mahasingh Shinde and ors. - Court Judgment

Excerpt:
code of criminal procedure, 1973 section 145 - preliminary order for possession of disputed property - satisfaction of magistrate on the basis of material produced - failure to state grounds - interference by revisional court - not justified.;mere failure of the magistrate to mention the ground for passing the order is not enough to interfere with the preliminary order in revision more so when the facts as set out in the order by the learned magistrate would constitute prima facie sufficient material leading to the satisfaction of the magistrate. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 4. there cannot be any dispute that when the magistrate who has passed the preliminary order was satisfied with the material which was produced before him, mere failure of the magistrate to mention the ground for passing the order is not enough to interfere with the preliminary order in revision more so when facts as set out in the order by the learned magistrate would constitute prima facie sufficient material leading to the satisfaction of the magistrate. in other words a preliminary order under section 145 of the code of criminal procedure can be passed only when the magistrate is satisfied that the dispute concerning the property is likely to cause breach of peace.a.d. mane, j.1. this criminal writ petition arises out of the proceedings under section 145 of the criminal procedure code. the executive magistrate, sillod in exercise of his power conferred on him by sub-section (1) of section 145 of the criminal procedure code directed that the disputed property c.t.s. no. 63 of village satara (bk.) be taken possession of under the supervision of the government until proceedings are disposed of. that order passed by the executive magistrate was challenged by the respondent in revision and the learned addl. sessions judge by the order dated 9-9-1991 set aside the order of executive magistrate and directed party no. 1 to continue in possession over the subject matter of dispute.2. the question arises whether the revisional court was justified in interfering with the order passed by the executive magistrate under sub-section (1) of section 145 of the code of criminal procedure.3. in order to appreciate this question it may be stated that the object of the section is merely to prevent a breach of the peace by maintaining one or other of the parties in possession which the court find they had immediately before the dispute. the action which may ultimately be taken is not punitive but preventive, and for that purpose is provisional only until such time as final or formal adjudication on the rights affected may be obtained and carried into effect by a court competent to deal with the matter in due course of law. that necessarily means that nothing that could affect the past, present or future rights of the parties, was contemplated in the section 145 of the code of criminal procedure.4. there cannot be any dispute that when the magistrate who has passed the preliminary order was satisfied with the material which was produced before him, mere failure of the magistrate to mention the ground for passing the order is not enough to interfere with the preliminary order in revision more so when facts as set out in the order by the learned magistrate would constitute prima facie sufficient material leading to the satisfaction of the magistrate. in other words a preliminary order under section 145 of the code of criminal procedure can be passed only when the magistrate is satisfied that the dispute concerning the property is likely to cause breach of peace. it is nobody's case that there was no any likelihood to cause breach of peace in given set of circumstances as recorded by the learned magistrate. therefore, it was not proper for the revisional court to interfere with the said order.5. the matter can be considered from another angle. when the magistrate records his satisfaction as to the existence of breach of peace in his preliminary order, the revisional court cannot go into the sufficiency or otherwise of the material on which the magistrate's satisfaction was based. in the present case, the learned additional sessions judge, therefore, seems to have exceeded his power of revisional jurisdiction in disturbing preliminary order passed by the executive magistrate.6. in the view that i take, the writ petition must be allowed. it is however, to be noted that by reason of allowing this writ petition, the preliminary order passed by the magistrate will have to be restored and in that event the magistrate is required to proceed with the enquiry as contemplated under sub-section (4) read with sub-section (6) of section 145 of the criminal procedure code. the magistrate is, therefore, directed to dispose of the enquiry proceeding as expeditiously as possible. with these directions rule is made absolute. no order as to costs.petition allowed.