J.N. Bhat, J.
1. The learned Sessions Judge Srinagar has made tills reference with the recommendation that the entire proceedings under Sections 145/107 Criminal P.C. launched by Ghulam Moh-ud-Din against Ali Bagban and others before the ADM Srinagar be quashed.
2. It appears that an application under Sections 145/107 Criminal P.C. was presented by the said Uhulam Mohi-ud-Din before the ADM Srinagar wherein he named correctly Ail Bagban and his son Ghulam Mohd. Bagban. The parentage of a few other non-applicants was not mentioned in the application. The application stated that Ghulam Mohl-ud-Din was the owner of a three storeyed building (which contained a shop) situate at Safakadal. Ali Bagban was the tenant of this shop but he ' had surrendered his tenancy a few days earlier. Later on two days prior to the presentation of the application all the non-applicants took forcible possession of the shop which created a danger to public peace. It was prayed that proceeding under Sections 107/145 Criminal P.C. be taken against the non-applicants. A separate application for attachment of this shop was presented to the court on the same day, i.e., 14-1-63. Some clerk in the ADM's Court recorded the statement of the applicant Ghulam Mohl-ud-Din and his witness Ghulam Mohd. Khan. On the same day an order of attachment of the shop was passed by the Magistrate. Notices under Sections 145/107, Criminal P. C. were ordered to be issued to the non-applicants. The proceedings went on for some time in the court of the ADM when a revision petition was presented by Ali Bagban before the learned Sessions Judge, Srinagar. The learned Sessions Judge has made the recommendation that the entire proceedings be quashed.
3. This reference was argued before me more than once. On one hearing Mr. Sharma appearing for the landlord Ghulam Mohi-ud-Din stated that Ali Bagban had voluntalily surrendered possession of his shop to his client for which a document was executed by him. This document was presented by Mr. Sharma in this Court on 25-9-64. Mr. Sharma contends that on account of this document which is dated 9th January 1963 the tenant Ali Begban surrendered possession of the shop to the landlord Ghulam Mohi-ud-Din. If this document is correct, then I have to believe that on 9th January 1963 Ali Bagban surrendered his possession voluntarily, got some remission in rent from the landlord, and on the 12th again took forcible possession of the shop. The presentation of the document by Mr. Sharma here should in no way be construed that the document has become part of the original record. In view of the order I propose to make, the question of admissibility and production and genuineness of the document will be considered and decided by the trial court.
4. The learned Sessions Judge has discussed the evidence produced by the applicant Ghulam Mohi-ud-Din in the trial court, has taken into consideration some execution file and other probabilities of the case, and then recommended that the entire proceedings 'should be quashed. I am afraid much of what has been stated by the learned Sessions Judge in his order of reference has to be kept out of consideration at this time. With due respects to the learned Sessions Judge he was not justified in discussing the evidence produced by the applicant. Under the provisions of Section 145, a finding about the merits cannot be given till both parties have led their evidence, unless of course the Magistrate under Sub-section (5) of Section 145 comes to the conclusion that no dispute as alleged by a party exists in which case the Magistrate shall cancel his preliminary order. But nothing of the sort has been done by the ADM in this case, though as pointed out by the learned Sessions Judge, an application was made to him on 15th January by Ali Bagban for setting aside the proceedings. At this stage we cannot consider the probabilities of the case or come to a finding on merits. The learned Sessions Judge is not right in stating that on the presentation of the application by Ali Bagban for cancellation of the proceedings, the Magistrate should have stayed the order of attachment. There is no such provision in the Criminal P. C. Once an attachment has been effected by a Magistrate under Section 145 of the Code, he has no jurisdiction to set it aside unless he cancels the preliminary order under the provisions of Section 145 (5) or decides the entire proceedings finally. Therefore much that has been said by the learned Sessions Judge in this case has to be ignored. The reference shall succeed or fail only if the preliminary order passed by the Magistrate is either vacated or upheld. Events subsequent to the preliminary order of 14-1-63 cannot be taken into consideration in disposing of this reference.
5. About the order passed by the A D M on 14-1-63 in these proceedings the least that we can say is that it is a case of complete negligence on the part of the Magistrate. The applicant, Ghulam Mohi-ud-Din, had admitted in his application that Ali Bagban was his tenant who had surrendered possession a few days before the institution of the application, and only a few days after he had taken forcible possession of the subject of the tenancy, i. e., the shop. This statement by itself should have alerted the Magistrate and made him scrutinize the matter rather carefully before passing any order under Section 145, Criminal P. C., much less an order of attachment of the property under the same section. The Magistrate has not at all touched the case himself, some clerk of his has written the statement of the applicant as well as his witness and the order also is in the handwriting of the clerk. To say the least. I am convinced the learned Magistrate never applied his mind to the case and simply initialled what his clerk had put down.
6. It is curious that the Magistrate purports to have passed an order of attachment before he passed the preliminary order under Section 145 (1). It seems whosoever was responsible for drafting this order was more anxious to see that the property was attached rather than do what was required to be done under law, more particularly under Section 145 of the Code.
7. It has been pointed out to me by Mr. Sharma that after the Magistrate had passed the order of attachment, he has said that the non-applicants should be directed to put in their objections with respect to possession, which should be deemed to be an orders under Section 145 (1). What Section 145 of the Criminal P. C. requires is that the Magistrate should first record his satisfaction about a dispute pertaining to some immovable property between the parties, and after recording his satisfaction on the material placed before him he should direct the parties to put in their objections-with respect to the actual possession of the property. Later on if he finds that the case is one of emergency, he may attach the subject-matter of the dispute under Section 145 (4).
8. In this case the order read as a whole conveys to my mind the impression that the Magistrate or his clerk whoever be held responsible for making this-order was anxious to get the property attached and incidentally as a second thought he directed a notice to be issued for filing objections under Section 145. The order would indicate that notice of proceedings under Section 107, Criminal P. C. also was directed to be issued to the non-applicants. But when they actually appeared, they were never bound down. This part of the proceedings was entirely lost sight of by all concerned. The applicant, Ghulam Mohi-ud-din never made a request to the court that the non-applicants be bound down for appearance in proceedings under Section 107, Criminal P. C. The court has never thought it necessary to take any such proceedings. Therefore the whole conduct of the applicant as well as of the Magistrate unmistakably leads to the inference that they were only interested in getting the attachment of the property effected, or as has been stated by the learned Counsel for Ali Bagban or for that matter by the learned Sessions Judge, to get the tenant ousted from his tenancy. This is most regrettable and unfair. Magistrates are expected as repeatedly held by this Court, to apply their judicial mind to the facts of a case and to act with caution and responsibility. While passing such grave orders as attachment of the property more so when the case is between a landlord and a tenant, Magistrate should not act as tools in the hands of a party to secure some ulterior objective conceived by a party.
9. In this case not making myself a party to the observations on merits made by the learned Sessions Judge in this case, I am fully satisfied that the order of 14th January 1963 passed by the ADM Srinagar is one which should not be upheld. It is not a legal order and must be quashed.
10. Then the question remains whether the proceedings should be quashed or the ADM directed to pass a fresh preliminary order if he so thinks necessary and then begin the proceedings afresh from the initial stage. I am bound by certain legal technicalities and therefore make the following order:
11. Both sides having appeared before the Magistrate, he will scrutinize the facts carefully before he comes to the conclusion whether the proceedings under Section 145, Criminal P. C. should be started in this case or not. If after hearing both parties he comes to the conclusion that it is a case in which he should start an inquiry under Section 145, he will pass a proper preliminary order as required by law. He will also keep the allegations made in the application and the statement of the applicant that possession has been taken away from him in view and take their legal effect into consideration before deciding the question whether proceedings under Section 145 should be started in this case.
12. About attachment I may say that the point whether the property should be attached or not has to be decided by the trial court. But I am sure the trial Magistrate will keep the numerous authorities of this Court in view on the question of attachment, and after weighing the entire circumstances of the case pass a proper and a judicial order whether attachment in such circumstances is warranted or not
13. The reference is answered accordingly.
14. The statement made by Ghulam Mohi-ud-Din in this Court on 18-10-64 with regard to the production of evidence does not now hold good. He had made that statement on condition that the order of the trial court would be upheld, but as the order has not been upheld, he will not now be bound by that statement.