Skip to content


Qadir Bhat Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1964CriLJ240
AppellantQadir Bhat
RespondentState and ors.
Cases ReferredSanjhi v. Tirath Ram
Excerpt:
- .....was taken before the sessions judge who has made this reference recommending that the order of the trial magistrate be quashed.3. the learned sessions judge has found fault with the preliminary order drawn by the trial magistrate under section 145(1), cr, p. c. it has been observed by the sessions judge in his judgment:section 145 clause (1) envisages of an existent dispute likely to cause a breach of the peace concerning any land (as in this case) within the local limits of the magistrate so empowered and then the order that is to be made in writing has to state the grounds of his being satisfied from the police report as in this case about existence of dispute likely to cause a breach of peace and then it requires the parties concerned in such dispute to put in their written statements.....
Judgment:
ORDER

Janki Nath Wazir, C.J.

1. This is a reference made by the Sessions Judge, Srinagar, recommending that the order of the City Magistrate attaching the property in dispute be vacated.

2. It appears that Qadir Bhat put in art application for initiation of proceedings Under Section 145, Cr.PC against Salam Dar and others, respondent Nos. 2 to 10v in the Court of Additional District Magistrate, Srinagar. The petitioner alleged that he was in possession of the property in dispute situate in Batawara and that respon-; dents Nos, 2 to 10 had taken forcible possession thereof and thus there was likelihood of Breach of peace. The Additional District Magistrate called for a report from the police. The police after ena.uiry reported that the property in dispute was a public lane and that respondents Nos. 2 to 10 had taken forcible possession of the same. The case was transferred to the Court of City Magistrate. The City Magistrate made a preliminary order (Under Section 145(1), Cr.PC and on the application of Qadir Bhat, respondent No. 1 attached the orcperty in dispute on 25-4-1958 on the ground that there was imminent danger of breach of peace. After considering the objections filed by the parties the City Magistrate passed an order on 18th May, 1962 dismissing the application Under Section 145, Cr.PC .but allowed the order of attachment to continue till the aggrieved person sought and secured order from some Civil Court In respect of the property in dispute. Against this order a revision was taken before the Sessions Judge who has made this reference recommending that the order of the trial Magistrate be quashed.

3. The learned Sessions Judge has found fault with the preliminary order drawn by the trial Magistrate Under Section 145(1), Cr, P. C. it has been observed by the Sessions Judge In his judgment:

Section 145 Clause (1) envisages of an existent dispute likely to cause a breach of the peace concerning any land (as in this case) within the local limits of the Magistrate so empowered and then the order that is to be made in writing has to state the grounds of his being satisfied from the police report as in this case about existence of dispute likely to cause a breach of peace and then It requires the parties concerned in such dispute to put in their written statements of their respective claims with respect to the fact of actual possession of the subject of dispute within the time to be fixed by such magistrate.

Now in the order quoted above one does not find anywhere recorded 'satisfaction' as required under, the provisions of the section. Besides one does not also All any mention of the written statements of their respective claims of the parties with respect to the fact of actual possession of the subject of the dispute, i.e. land in this case.

4. Although the trial Magistrate has not stated in claw words that he was satisfied from the police report about the existence of dispute likely to cause breach of peace yet there is sufficient indication in that order that he considered the police report and called upon the parties to file their written statements. In compliance with the order of the trial Magistrate the parties filed: their written statements. The mere fact that there has been some irregularity in drawing up the preliminary order would not vitiate the proceedings. Reliance in this connection may be placed on a Division Bench ruling of this Court in Sanjhi v. Tirath Ram reported in AIR 1959 J. and K. 16 in which it has been held:

Where no miscarriage of justice was caused to the party by the fact that the preliminary order was not drawn up strictly in accordance with the provisions of Section 145 the parties were present before the trial Magistrate, and had led evidence but no objection was taken by any party that the preliminary order was defective.

Held that, in these circumstances it would not be proper to quash the proceedings and allow the parties to agitate the matter once again in the trial Court which would involve them in unnecessary expense and inconvenience.

It is true that the trial Magistrate has not recorded any finding with respect to the fact of actual possession of any party within two months next before the date of preliminary order. Moreover, the trial Magistrate has misread the evidence when he mentioned in his order that 'evidently there is no dispute between Qadir Ehat and Salam Dar with respect to possession'. But in the same breath he stated that Qadir Bhat wanted the strip of land to be declared as a public lane and Salam Dar stated that he had been in possession of the strip of land for pretty long time and was the owner of the same. At the end of his order the trial Magistrate has remarked:

But it is apparent from the evidence that if attachment of the property is removed, the parties concerned may commit such actions as may cause breach of peace. The property shall continue to be attached till the aggrieved person seeks and secures order from some Civil Court.

With these remarks the trial Magistrate dismissed the application Under Section 145, Cr.PC but allowed the property in dispute to remain under attachment. The trial Magistrate was clearly wrong in dismissing the application under 'Section 145, Cr. P C. when he had found that If the attachment of the property was removed the parties might commit such actions as may cause breach of peace. Although he has not stated in clear terms that to was unabte to satisfy himself as to which of the parties was in possession of the subject of dispute yet from toe order passed by him it appears that he allowed the property to remain under attachment Under Section 146, Cr.PC Proceedings Under Section 146 are only in con-tfnuatfon of those Under Section 145, Cr.PC If a magistrate finds that he is unable to satisfy himself as to which of the parties is in possession he is competent to attach the property Under Section 146 in order to avoid breach of peace. This is what the magistrate has done in this case. He has relied upon the report of the police which was to the effect that there was likelihood of breach of peace between the parties if the property in dispute was not attached. The Assistant to the Advocate General submits that in the circumstances of the case the order of the trial Magistrate attaching the property in dispute may be kept intact whereas the order dismissing the application Under Section 145, Cr.PC should be vacated. The object of attachment in such) exceptional cases is to keep the property in custodial legis so as to prevent the contesting parties from craft ing breach of peace in their attempts to obtain actual possession thereof until rights of the parties are effectively determined by a competent Civil Court. I, therefore, allow the reference only to this extent that while vacating the order of the trial Magistrate dismissing the application Under Section 145, Cr.PC maintain his order in regard to attachment of the property in dispute until a competent Civil Court has determined rights of the. parties thereto or the person entitled to possession thereof.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //