$~47 * IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.REV.P. 29/2012

% Judgment delivered on: 13th January, 2012

DR.YASHWANT SINGH ..... Petitioner Through : Mr.Sandeep Sethi, Sr Advocate with Mr.Mohit Chaudhary, Mr.Dheeraj Gupta and Ms.Anita Das, Advs.

versus

ASHUTOSH VERMA & ANR. ..... Respondent Through : Ms.Rajdipa Behrua, APP for State.

CORAM: HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

CRL. M.A.519/2012

Exemption is allowed subject to just exceptions.

Criminal M.A. stands disposed of.

CRL.Rev.P.29/2012

1. Vide instant petition, the petitioner has challenged the notice issued to petitioner under signature of Reader to SDM.

2. Mr.Sandeep Sethi, Sr. Advocate appearing on behalf of the petitioner has submitted at bar that except this notice there is no order

Crl.Rev.P.29/2012 Page 1 of 5

on record passed by the ld. SDM, which is mandatory under Section 145 of CrPC. For the convenience the Section 145(1) is reproduced as under:-

"Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute".

3. Mr. Sethi, Senior Advocate in support of his argument has relied upon the judgment of this court in Nirmal Singh v. Harinder Singh Grover 169(2010)DLT 428 being passed by this court while referring Mathuralal v. Bhanwarlal and Anr. (1979) 4 SCC 665, has inter alia held as follows:-

"Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the Criminal Courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under Section 145 that a

Crl.Rev.P.29/2012 Page 2 of 5

failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceeds under Section 145 & 146."

4. In the above referred case Nirmal Singh (supra) the issue was similar and impugned notice dated 07.12.2005 wherein written as under:-

"3. The impugned notice dated 7.12.2005 issued to the petitioner and three other persons, reads as follows: "Where as ……… case has been made before me and you are hereby informed through the notice. You are hereby required to appear in person or by pleader on 3.1.2006 at 3:00 p.m."

5. Though, Co-ordinate Bench of this court while dealing with the issue in the above referred case called the judicial file of the SDM, and satisfied himself, however, when a Senior Advocate has made a statement at bar therefore, no occasion to disbelieve the same.

6. This Court in Jagdish Gandhi and Anr. v. State and Anr. 153 (2008) DLT 64 has also followed the decision in Mathuralal (supra) while taking note of various other decisions of other Courts. The relevant extract from the aforesaid decision reads as under:-

"12. In this case, it will be seen from the facts stated above as to whether the provision of Section 145 Cr. P.C. has been properly complied with or not. The order under Section 145 (1), Cr. P.C. was passed by the SDM on 05.05.2004 in order to take preventive action under Section 145 Cr. P.C.,

Crl.Rev.P.29/2012 Page 3 of 5

two essential conditions must be satisfied (1) there must be dispute relating to land or other objects mentioned in Sub-section (1) and (ii) the dispute is likely to cause a breach of peace. If there is no dispute there is no obligation on the part of the SDM to pass orders under Section 145 Cr. P.C. The SDM exercising jurisdiction under this section must be satisfied about these two conditions either from a police report or from any other information, which must include an application, by the dispossessed person. The term "satisfied" is of considerable expansiveness, which means free from anxiety, doubt, perplexity, or uncertainty. The satisfaction of the Magistrate must be clear and unambiguous. Nothing short of that can give him jurisdiction under Section 145 Cr. P.C. So is held in Laxman v. Bahim Khan, 1976 Crl.LJ 1492 and Lala Ram V R. R. Bainswal, 1981 Crl L J 981 ( P & H High Court).

14. Sub-section (1) of Section 145, Cr. P.C. requires that while making the impugned order in writing the Magistrate shall state "the grounds of his being so satisfied". This impugned order is considered so basic that a failure to draw it up can vitiate all the subsequent proceedings. Similar view is taken in Mathuralal v. Bhanwarlal, (1979) 4 SCC 665. (See also Gabriol Thankayyan v. Narayanan Nadar, 1977 Crl L J 1870 Kerala High Court; and Banney v Ramesh Chandra 1983 Crl L J 18 (Allahabad High Court)."

7. Keeping the above discussion and settled law into view, I am of the opinion there is no order passed on satisfaction by the ld. SDM, which is mandatory under Section 145 Cr. P.C., therefore, the notice dated Nil at page 32 of the paper-book is set aside.

Crl.Rev.P.29/2012 Page 4 of 5

9. The SDM concerned is at liberty to proceed as per law.

10. In view of above, Criminal Revision Petition No.29/2012 is allowed and stands disposed of.

11. Accordingly, Criminal M.A.No.518/2012(stay) does not require any further adjudication and same stands disposed of.

SURESH KAIT, J

JANUARY 13, 2012 ns