Guidelines for the working of the courts of executive

1. CHAPTER XXIX
GUIDELINES FOR THE WORKING OF THE COURTS OF EXECUTIVE
MAGISTRATES.
Proceeding under section 133 of the Code of Criminal Procedure, 1973.
1. According to section 6 of the Code of Criminal Procedure, 1973, the Court of the
Executive Magistrate is a Criminal Court and under Section 397(1), it is inferior to the
Sessions Judge for the purposes of examining the correctness, legality or propriety of any
finding, sentence or orders, recorded or passed, and the regularity of any proceedings of
such Court.
2. The Executive Magistrate can initiate proceedings under Section 133 of the Code
of Criminal Procedure, 1973, on his receiving the report of a Police Officer or other
information or on the application made by a private individual.
3. It is important to note that Section 133 of the Code of Criminal Procedure, 1973,
provides a speedy and summary remedy only in case of urgency where danger to public
interest or public health is involved.
4. The nuisance or unlawful obstruction contemplated in Section 133 is a public
nuisance or unlawful obstruction and that therefore no order for removal of private
nuisance can be passed under section 133 of the Code of Criminal Procedure, 1973.
5. In the proceedings under Section 133 of the Code of Criminal Procedure, 1973, a
mere notice to show cause without passing conditional order for compliance is not
sufficient.
6. The Executive Magistrate should not pass final order under Section 133 of the
Code of Criminal Procedure, 1973, without passing a conditional order at the appropriate
stage and it is also absolutely necessary for him to give an opportunity to the persons,
likely to be affected by the Court's orders, to file objections before passing the final
orders making the conditional order obsolute. Such final order passed on the basis of
Inspection Notes without considering the objections of the people affected by the

2. nuisance is irregular and in violation of the mandatory provisions. The evidence of both
the parties should be considered.
Proceedings under Section 145 of the Code of Criminal Procedure,1973.
7. The Executive Magistrate can initiate proceedings under Section 145 of the Code
of Criminal Procedure, 1973, on an application made by any person or on a Police Report
or on the information received.
The main object of proceedings under Section 145 is to secure maintenance of
peace and tranquility the breach of which is threatened on account of dispute regarding
actual possession of the immovable property.
It is obligatory for the Magistrate to start the proceedings under Section 145 when
he received information and is satisfied that a dispute likely to cause breach of peace
exists.
8. The proceedings under Section 145 of the Code of Criminal Procedure, 1973, are
summary proceedings. The Magistrate must first try and decide the issue as to the
jurisdiction raised by the parties. If no such issue is raised by any party, the Magistrate
should first see whether he has jurisdiction.
9. Before passing preliminary order, the Magistrate should satisfy himself about the
apprehension of breach of peace. The grounds for his satisfaction should be mentioned in
the preliminary order.
The Magistrate should pass a preliminary order on his subjective satisfaction after
calling for or recording a report or an information about the existence of a dispute which
is likely to endanger a breach of the peace.
The Magistrate must state that he himself is satisfied as to the likelihood of breach
of the peace and that such satisfaction is based on some material.
10. The recording of sworn statement of the opposite party is neither obligatory nor a
condition precedent to the passing of a preliminary order.
11. Attention of the Executive Magistrate is invite4d to the decision of the High Court
in the case of Smt. Flori Rodriques and another versus Maxie Jureme Danial cabral and

3. two others, reported in 1978, Mah.L.J.627, wherein it is held that :­
“It is no longer open to the Magistrate to dispose of proceedings under Section
145 of the Criminal Procedure Code, on the basis of affidavits ................it is essential for
a Magistrate to see the witnesses for himself in as much as ................the Magistrate has
observed without even seeing (the Revision Petitioner's)witness,..................that he is a
disabled man and incapable of giving evidence.”
“................although no grievance might have been made in the Lower Court (by
the Revision Petitioner's Advocate)............since the Magistrate has not followed the
prescribed procedure and it was his duty to follow the prescribed procedure, the whole
inquiry has been vitiated and, therefore, the order (passed by the Magistrate disposing of
the matter on affidavits) must be quashed...........”.
12. Since section 145 requires consideration of statements, the judgment should show
that the Magistrate has considered the statements and has applied judicial mind. merely
stating the names of persons swearing statements without discussing as to what they have
said is not enough.
The Magistrate must examine statements critically. Mere rejection of them with
observation that the statements do not inspire confidence is not proper.
While examining the witnesses, the Magistrate should ascertain the likelihood of
breach of peace. He should pursue the evidence led by the parties, asses its value by
proper application of mind and then come to the conclusion regarding possession.
The statements filed by the parties must be taken into consideration. The
Magistrate must consider all documents and statements before passing any orders under
Section 145. But under any circumstance, the Magistrate can not decide the right or rights
only on statements filed by the parties. He must receive all such evidence as may be
produced and also take such further evidence as may be necessary. Under any
circumstance, the case must not be decided merely on statements. The Magistrate can not
decide the case on statements alone. He must receive all evidence for determining the
question of actual possession of the party claiming it. Every document must be taken into
consideration.
13. Attention of the Executive Magistrates is invited to the provisions of Sections 272
to 299 included in Chapter XXIII of the Code of Criminal Procedure, 1973 with regard to
the evidence in inquiries and trials, and particularly to the new provision of Section 294

4. of the Code of Criminal Procedure, 1973, according to which the particulars of the
documents filed before the Court shall be included in a list and the Petitioner or
complainant or the Opponent, as the case may be, or the Pleader for the Petitioner or the
complainant or the Opponent, if any, shall be called upon to admit or deny the
genuineness of each document and if the genuineness of any document is not disputed,
such document may be read in evidence in any inquiry, trial or other proceedings,
without proof of the signature of the person to whom it purports to be signed ; which
however, the Court may in its discretion require it to be proved. (Please refer to newly
added paragraph 32 of Chapter VI of Criminal Manual, 1980).
14. The Magistrate should note that Section 146(1) of the Code of Criminal
procedure, 1973, does not provide for his making a reference in a case to the Civil Court
as in Section 146(1) of the Code of Criminal Procedure, 1898.
15. Attention of the Executive Magistrates is invited to the decision of the High Court
reported in 79B.L.R­16, in the case of V.K. Rao versus Chandappa Appa Devadiga,
wherein the Court has made the following observations :­
“Proceedings under section 145, Criminal Procedure Code, 1898 are summary
proceedings. The emphasis is on a speedy disposal of such disputes. The provisions
regarding the stating of the grounds are directory and not mandatory.”
“Even if the provisions regarding stating of the grounds are mandatory,
noncompliance by the Magistrate of those provisions does not in any way vitiate the final
order in absence of proof of prejudice suffered by the parties against whom the order is
made in view of the provisions of Section 527 of the Criminal Procedure Code
(Corresponding Sections 464 and 465 of the Code of Criminal Procedure, 1973).”
“There should be sufficient compliance of provisions of section 145(1) and there
should be something to show that there were grounds before the Magistrate when he
passed the preliminary order (that there should be dispute relating to land or water, and it
should be likely to cause a breach of the peace). The Magistrate is entitled to arrive at
satisfaction on the basis of the Police report or other information which may be only the
application of the complainant. The question whether the material before the Magistrate
was sufficient or not can not be examined by the High Court as the satisfaction under
section 145(1) is that of the Magistrate, Whether on the material before him he should
initiate the proceedings or not is his discretion. No doubt, he has to exercise this
jurisdiction in accordance with the recognised rules of law in that behalf. The Magistrate

5. has to draw the preliminary order on the basis of the police report or other information.
What that “other information” should be is entirely a matter which he has to decide.”
“It is advisable for the Magistrate to record the grounds of his being satisfied as
required by section 145 of the Criminal Procedure Code, 1898 separately, but if he is
satisfied by reading the police report or the application, it is not obligatory for the
Magistrate to record the grounds separately or examine the applicant. First he has to read
the report or the application and he may examine the applicant and then pass the
preliminary order.”
16. Attention of the Magistrates is also invited to the High Court decision reported in
79 B.L.R.­447 in the Case of Ramchandra Manjunath Prabhu versus Atmaram Gopal
Gaikwad, wherein the Court has made the following observation :­
“Proceedings under section 145 of the Code of Criminal procedure, 1973, are for
the purpose of preventing breach of peace. What the executive Magistrate is required to
do is to find out who was in possession on the date or two months prior to the drawing of
the preliminary order.”
17. The Magistrate should bear in mind the scheme of Section 145 of the Code of
Criminal Procedure, 1973, and the urgent nature of the proceedings thereunder and see
that the preliminary orders under Section 145(1) of the Code are passed with the greatest
expedition. (vide High Court Circular No.P.2119/70, dated the 6th
March, 1970).