A single judge of the Madras High Court Bench here has recommended constitution of a Full Bench (comprising three judges) to decide whether failure of Executive Magistrates to pass preliminary orders in proceedings under Section 145 of Code of Criminal Procedure would automatically vitiate final orders passed by them under the provision.
Justice S. Nagamuthu made the recommendation in view of a number of such final orders being quashed by the High Court on a regular basis despite the absence of an authoritative pronouncement on the issue. Section 145 lays down procedures to be adopted by Executive Magistrates when disputes concerning land or water were likely to cause breach of peace.
The judge pointed out that Section 145(1) of Cr.P.C. states that whenever an Executive Magistrate was satisfied with a report of a police officer, or upon other information, that a dispute concerning land or water within his jurisdiction was likely to cause breach of peace, he should pass a written order with respect to his satisfaction and then summon the parties concerned for an enquiry.
Further, Section 145(4) states that after the enquiry, the Magistrate should pass final orders deciding as to which of the rival parties were entitled to be in possession of the property.
The judge pointed out that the High Court had been flooded with cases of Executive Magistrates having passed final orders under Section 145 (4) without passing preliminary orders under Section 145 (1).
Many single judges of the court had been quashing such final orders by following judgements passed by Division Benches in cases relating to Section 133 (power conferred on Executive Magistrates to conditional order for removal of nuisance) proceedings which, according to Mr. Justice Nagamuthu, were substantively different from proceedings conducted under Section 145.
Pointing out that Division Benches in the High Courts of Patna and Calcutta had categorically held that final orders under Section 145 would only become irregular and not illegal in the absence of preliminary orders, the judge directed the High Court Registry to place the matter before the Chief Justice Sanjay Kishan Kaul for constitution of a Full Bench to resolve the issue.
