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Misri and ors. Vs. Nazir Hussain - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1976CriLJ924
AppellantMisri and ors.
RespondentNazir Hussain
Excerpt:
- .....against the petitioner under section 188 of r. p.c. cannot be accepted. the court has got inherent power to see that its orders are enforced and that the majesty of law is maintained. in air 1967 cri 182 : 1967 cri lj 1549, it has been observed:even if an order of the magistrate delivering possession to a party after cancellation of an order under section 145 may not come within section 517(1), it would fall within the scope of the inherent powers of the magistrate. it is now well settled that the subordinate magistrates possess inherent powers apart from the express provisions of law which are necessary to their existence and proper discharge of duties imposed upon them by law. every court, whether civil or criminal, in the absence of an express provision to the contrary, shall.....
Judgment:
ORDER

Mian Jalal-Ud-Din, J.

1. This is a revision petition against the order dated 17-5-1975 of Addl. District Magistrate, Rajouri directing the Circle Inspector to restore the possession of the land in dispute to the respondent in accordance with the previous order of that Court.

2. Mr. S. A. Salaria appearing for the petitioner has contended that the Magistrate had no jurisdiction to pass1 the impugned order inasmuch as after the termination of the proceedings under Section 145, Cr.P.C. he became functus officio. It is, however, conceded that the final order of the Magistrate passed in proceedings under Section 145, Cr.P.C. determined the right of possession in favour of the respondent and declared him to be entitled to the possession of land in dispute. The Court ordered the Superdars to hand over the possession of the land to the respondent. But after the respondent was put in possession of the land pursuant to the order of the Court he was subsequently dispossessed and therefore, the respondent could not now reclaim the possession in terms of the final order of the Court under Section 145, Cr.P.C. The remedy of the respondent, it is contended, is to file a suit under Section 9 of the Specific Relief Act and also move the criminal court under Section 188 of the R.P.C The court could not again order the delivery of the possession to the respondent, it is further submitted that the case was covered by the Agrarian Reforms Act and therefore, no follow up action could be taken by the Magistrate.

3. I have carefully considered this argument. In my view it is not possible to accede to the argument that the Magistrate became functus officio and that he, was unable to implement his own order. My attention has been invited to a previous petition filed by the respondent before this Court under Section 561-A of Cr.P.C. decided on 15-6-1970. In that application as well the respondent had made a grievance of the fact that despite the final order of the court below in proceedings under Section 145, Cr.P.C. directing the respondent to be put in possession of the land was not complied with and possession was not restored to him. The learned Judge, who decided this petition observed:

petitioner has been persistently crying .before ell the authorities that he haft not been given possession of the land. The case is, therefore, sent back to the trial court with the direction that he would call the superdars and see that the order passed by all the courts is implemented and the petitioner is given possession of the land.

Even notwithstanding this observation made and the direction given by this Court, the order of restoring the possession to the respondent was not implemented. If at all, it was implemented, it was only in letter and not in spirit. The argument of the petitioner that the respondent was given the possession and was subsequently dispossessed and therefore, he has got no remedy to seek enforcement of the order of the Court and that his only remedy is to file a out in a summary way or to make a complaint against the petitioner under Section 188 of R. P.C. cannot be accepted. The Court has got inherent power to see that its orders are enforced and that the majesty of law is maintained. In AIR 1967 Cri 182 : 1967 Cri Lj 1549, it has been observed:

Even if an order of the Magistrate delivering possession to a party after cancellation of an order under Section 145 may not come within Section 517(1), it would fall within the scope of the inherent powers of the Magistrate. It is now well settled that the Subordinate Magistrates possess inherent powers apart from the express provisions of law which are necessary to their existence and proper discharge of duties imposed upon them by law. Every court, whether Civil or Criminal, in the absence of an express provision to the contrary, shall be deemed to possess, as inherent in its very constitution, of such powers as are necessary in the course of administration of justice. This power is, however, not to be exercised contrary to express provisions of the Code and must be used cautiously.

The Court, it is observed, has therefore, inherent power to effectuate and implement its own order, in order to prevent a recalcitrant party from defying its orders.

4. That the respondent has been crying hoarse and has not been afforded the relief granted by the Court, is a matter that cannot be encouraged. The question that the operation of the Agrarian Reforms Act has in some way affected the rights of the respondents or has altered the legal position has got no bearing on the case and is of no consequence. This is a matter, if at all that has any substance, that can be considered by the competent authority on its own merits. But surely, the Circle Officer, cannot sit in judgment over the criminal Court deciding question of possession under Section 145 of Criminal Procedure Code. The scope of Sec, 145, Cr.P.C. is limited. It extends to the consideration and determination of the right of actual physical possession of a party. That aspect of the matter has been concluded in favour of the respondent and he has been found entitled to the possession of the land. No extraneous consideration can prevail or have the effect of overriding that order of the Court.

5. I, therefore, find no force in this revision petition, which is hereby dismissed. The order of the Magistrate is affirmed.


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