V.Anand vs. The Sub Divisional Magistrate Cum Sub Collector

Facts

The petitioner, V. Anand, is the owner of a hotel named 'Sri Anantha Bhavan Hotel' located in Marthandam, Kanyakumari District. He possesses GST, Professional Tax, Property Tax, and other relevant documents for the property. A dispute arose with the third respondent, A.Al.Ameen, owner of an adjacent hotel, who allegedly attempted to disturb the petitioner's possession and caused injuries. The petitioner filed a complaint (Crime No. 188 of 2019) and the third respondent filed a counter-complaint (Crime No. 187 of 2019). The police referred both cases to the first respondent, the Sub-Divisional Magistrate-cum-Sub-Collector. The first respondent, under Section 145 of the Cr.P.C., passed an order on 03.06.2019 to keep the hotel premises under lock and key, citing apprehension of breach of peace. The petitioner filed this Criminal Revision Case challenging the Magistrate's order.

Held

The Court allowed the Criminal Revision Case and set aside the impugned order. The Court noted that the Sub-Divisional Magistrate passed the order under Section 145 of Cr.P.C. based on two FIRs registered against the petitioner and the third respondent. However, it was observed that both FIRs were subsequently closed by the police as 'Mistake of Fact'. The Court found that since the basis for apprehending a breach of peace (the FIRs) was removed, there was no longer a justification for the Magistrate's order. Furthermore, the Court acknowledged that the petitioner had approached the civil court by filing a civil suit (O.S.No.108 of 2019) after the impugned order was passed. The Court also noted the Magistrate's own observation that he could not determine who was in actual possession and that he had not decided the title of the property. Given that the FIRs were closed and a civil suit was pending, the Court concluded that the impugned order was liable to be set aside. The ratio decidendi is that an order under Section 145 Cr.P.C. based on apprehended breach of peace, which is subsequently found to be non-existent due to closure of related criminal proceedings, and where a civil suit is pending to resolve title and possession, is unsustainable.

Key Issues

1. Whether the Sub-Divisional Magistrate was justified in passing an order under Section 145 of the Cr.P.C. to attach the property when both registered FIRs were subsequently closed as 'Mistake of Fact' and a civil suit was pending regarding title and possession? Petitioner's Arguments: The petitioner argued that the impugned order was passed solely based on the two FIRs, which were later closed. He contended that the Magistrate made an observation that the property belonged to the petitioner and that the closure of the hotel was based on these closed cases. The petitioner also argued that the Magistrate has no right to decide title when a civil suit is pending, and that the order becomes infructuous in such circumstances. He relied on Dr. Christopher Asir v. The RDO, Madurai and a Supreme Court judgment reported in 2006(11) SCC 66. Revenue/State's Arguments (First Respondent): The first respondent argued that the order was passed due to apprehension of breach of peace and that there was no title dispute, only a dispute regarding possession. They stated that the Magistrate has the power to pass an order when there is a breach of peace concerning any land within his jurisdiction and that the petition should be dismissed. Third Respondent's Arguments: The third respondent argued that the Magistrate is entitled to pass an order under Section 146 of Cr.P.C. when there is doubt regarding possession and likelihood of breach of peace. They claimed the petitioner tried to trespass on property in their possession and that the Magistrate did not decide title, only possession, and that the suit was filed after the impugned order. They cited judgments from the Punjab and Haryana High Court (1983 SCC Online P&H 687) and Patna High Court (1987 SCC Online Pat 102).