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Kamal Magray and ors. Vs. Ghulam Mohammad Wani - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1961CriLJ62
AppellantKamal Magray and ors.
RespondentGhulam Mohammad Wani
Excerpt:
- .....pulwama dated 23-6-59 attaching the land in dispute under section 145 sub-clause (4) of the code of criminal procedure and referring the parties to a civil court, be set aside.2. it appears that on an application filed by ghulam mohammad wani the learned magistrate drew up proceedings under section 107 of the code of criminal procedure against the petitioners. subsequently an application was filed before hint stating that there was an imminent danger of; breach of the peace, and therefore, the land should' be attached. it appears that the learned magistrate without considering as to whether he had in fact drawn regular proceedings under section 145 cr.p.c. attached the land and referred the parties to a civil court.3. the order of the learned magistrate is, in my opinion,.....
Judgment:
ORDER

S.M. Fazl Ali, J.

1. This is a reference by the Additional District Magistrate Anantnag, recommending that an order passed by the learned Tehsildar Magistrate Pulwama dated 23-6-59 attaching the land in dispute under Section 145 Sub-clause (4) of the Code of Criminal Procedure and referring the parties to a civil court, be set aside.

2. It appears that on an application filed by Ghulam Mohammad Wani the learned Magistrate drew up proceedings under Section 107 of the Code of Criminal Procedure against the petitioners. Subsequently an application was filed before hint stating that there was an imminent danger of; breach of the peace, and therefore, the land should' be attached. It appears that the learned magistrate without considering as to whether he had in fact drawn regular proceedings under Section 145 Cr.P.C. attached the land and referred the parties to a civil court.

3. The order of the learned Magistrate is, in my opinion, completely without jurisdiction. He had no jurisdiction under Section 145, Sub-clause (4), Cr.P.C. to attach the land permanently and refer the parties to a civil court, for he could have adopted this course only after he had passed an order under Section 146 Cr.P.C. and after having decided proceedings under Section 145 Cr.P.C. and come to the conclusion that it was not possible for him to find which party was in possession of the land. But before seeking to attach the lands, the magistrate should have passed a preliminary order under Section 145 of the Code of Criminal Procedure which is also lacking in this case. In these circumstances, the order of the learned Magistrate is not at all warranted by any of the provisions of the Code of Criminal Procedure. The learned magistrate must look to the law betore passing orders like this which cause unnecessary harassment to the parties aggrieved. The conduct on the part of a magistrate to draw up proceedings simultaneously under Section 107 Cr.P.C. and 145 Cr.P.C. as a matter of routine has been strongly condemned.

Section 107 Cr.P.C. is not meant to be a weapon in the hands of a party to dispossess other persons and such proceedings should only be resorted to when one party is clearly in the wrong and is trying to usurp the rights of the other by committing wrongful acts. The learned magistrate must look to these matters before passing such orders. When there is a clear or a bona fide land dispute leading to a breach of the peace, the magistrate should in these circumstances draw up proceedings under Section 145 Cr.P.C. only and should not resort to Section 107 Cr.p.C. simultaneously unless exceptional circumstances are brought to his notice.

4. The result is that the reference is accepted and the order of attachment passed by the magistrate under Section 145, Sub-clause (4) of the Code of Criminal Procedure is set aside.

5. As regards the proceedings under Section 107 Cr.P.C. I do not find any allegation of overt act against the petitioners and therefore, the said proceedings are quashed. If however, the learned magistrate finds that a dispute with respect to land still exists be may draw up regular proceedings under Section 145 Cr.P.C. only and carry such, proceedings to its logical end instead of referring the parties to a civil court even before concluding proceedings under Section 146 Cr.P.C.


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