J.N. Bhat, J.
1. This is a reference made by the District Magistrate. Anantnag, dated 20-10-1965, whereby he has recommended quashing of the order of attachment passed by the Munsiff Magistrate. Anantnag, in proceedings taken by him on an application made before him under Section 145. Cr. P.C.
2. I have heard the learned Counsel for the parties and have perused the entire record both of the learned D.M. and that of the Munsiff Magistrate The learned D.M. has more or less made a comment on the merits of the case His finding is that the non-applicant Munwar Bhat has been shown in possession of the suit land from 1960 to Rabi 65 and therefore the Magistrate, according to him, has passed orders without having regard to the factual possession of the land in dispute at site. The learned D.M's recommendation on the grounds be has mentioned in the reference cannot be accepted, as that would be making some positive reflections about the merits of the case which cannot be done at this stage of the proceedings. But nonetheless in my opinion not only the attachment order but the entire proceedings taken under Section 145 shall have to be set aside.
3. This case presents a very interesting and curious reading. An application under Section 145 Cr. P.C., pertaining to land measuring 11 kannals and 4 marlas under survey No. 813 situate in Verinag Tehsil, Anantnag. seems to have been written on 11th September, 1965. Along with this application there is another application for attachment of the said property under the same section supported by an affidavit. These applications were written on behalf of Gulla Shah, the petitioner before the trial court The record of the case does not at all indicate on which date the applications were presented and before whom. I am not sure whether the Munsiff Magistrate at Anantnag has the jurisdiction to entertain the applications direct; at any rate the applications do not seem to have been transferred to him by the ADM of that place.
There is, however, an initial of two letters, which reads as VS. on the application but is without any date. On the application for attachment the word 'attach' has been written and again the same initials which look like VS are affixed to it but these initials are also without date. The only document presented with the application seems to be a mutilated copy of an order of the DC Collector, Anantnag, dated 10th December 1963. This copy has marginal notes and certain under-linings. By whom the marginal notes have been written and the portions underlined one cannot say. Then there is the statement of the applicant recorded by some clerk of the court. This statement bears the date 11-9-1965.
There is an order which perhaps purports to have been under Section 145, Cr. P.C., drafted by another clerk. It has been stated before me that there is nothing in the handwriting of the learned Magistrate except the word 'attach' on the attachment application and the hieroglyphic initials which on the application read as VS and on the so called preliminary order read as V Shy. 1 am told these are the initials or signatures of the then Munsiff, Anantnag, Mr. Mohd. Shall.
4. It has been strenuously argued before me that the whole proceedings are the grossest abuse of the process of law. Mr Karim has stated that there were proceedings under Section 145, Cr.P.C., about the same property between the parties. That dispute was finally decided by the ADM, Anantnag, on 15-1-1963 and those proceedings had culminated in a compromise presented before the learned ADM on that day. According to the compromise 5 kanals and 10 marlas of land were to remain in possession of Munawar Bhat and the remaining land from the disputed land (i.e.. 11 kanals and 3 marlas) was to remain in possession of Gulla Shah. The parties had not to disturb the possession of each other. According to Mr. Karim fresh proceedings under Section 145 would not lie. If any party before the ADM had tried to forcibly take possession of the property in possession of the other, proper proceedings could be taken under the Cr. P.C. in continuation of the old proceedings.
The present application before the Munsiff Magistrate does not make any mention of the previous proceedings but it makes a brief recital that 11 ks and 3 ms of land are in possession of the applicant and the other party tries to forcibly dispossess him. That is the application. But what is most regrettable and at the same time objectionable is that the Magistrate without himself touching the whole proceedings with a pair of tongs has allowed his clerk to record the statement of the petitioner before him and has delegated to the other clerk the power of drafting the order. The order impugned does not bear any date, but presumably it may have been passed on the same date on which the application was presented namely, 11-9-1965. The next date fixed in the proceedings has been shown as 18-10-1965.
The inattention and the inexcusable negligence of the Magistrate to say the least, is writ large on the face of the proceedings themselves. The mutilated order of the Collector, dated 10 12-1963, would itself show that if the Magistrate or even his clerk had cared to go through it, there was a clear recital in that order to the effect that proceedings under Section 145 before the ADM, Ananlnag had culminated in the decision of the court to the effect that 5 ks and 10 ms of land would be in the possession of the petitioner and 5 ks and 10 ms in the possession of the respondent. Munawar Bhat If once the dispute pertaining to this land had been decided by a competent court, namely that of the ADM. Anantnag, no fresh proceedings under the same section could lie, muchless could an order of attachment be passed in such a case. The clerk who drew up the preliminary order has simply in the words of Mi. Karim copied out the contents of the application and has got the learned Magistrate affix his initials underneath it. Neither the clerk nor the Magistrate, as already stated, cared to even date the order.
5. Mr. Karim's further argument is that Gulla Shah chose the right time, i.e., the month ot September. When the kharif crop in the land, which was Abi Awal. was ripe, Gulla Shah thought it the most opportune time to deprive Munawar Shah of the fruits of his lahour which he had put in and get the land as well as the crop attached. There seems to be very great force in this contention of Mr. Karim. It has been held by this Court a number of times in such proceedings that firstly, proceedings under Section 145, Cr. P.C.. should be started after carefully scrutinising the allegations and secondly proceedings under Section 145 should not he started as a matter of routine and unless the Magistrate is satisfied that there is danger to public peace relating to possession of immovable property proceedings under Section 145 should not be initiated at all, (3) the satisfaction should be of the Magistrate himself and this discretion should not be left to be exercised by his clerks. (4) the Magistrate should find, after personally satisfying himself that the case is one of emergency; in that case alone can an order of attachment be passed under Section 145(4).
Otherwise as already laid down by this Court and other courts, the salutary provisions of this Section are being abused. Where a party wants to deprive another of the possession of immovable property, he usually takes recourse to an application under Section 145 and gets the property attached resulting in the dispossession of his adversary. Such orders under Section 145 do cause hardship to the other side when actually there is no case for it and do cause a positive loss, inconvenience, harassment and humiliation to other side if the party gets attachment under the garb and cloak of a statement to the effect that there is emergency which would result in grave danger to public peace. It is to be regretted that Magistrates in spite of the numerous decisions of this Court as to how proceedings under Section 145 should he started and in what cases attachment can be ordered, ignore these decisions to suit their own convenience, caprice or choice, This is the most lamentable slate of affairs. Apart from the other cases which are not reported, the following reported cases of this Court may be cited
6. In AIR 1958 J & K 17, it was laid down by a Full Bench of this Court:
The second proviso to Section 145(4) confers extra-ordinary jurisdiction upon a Magistrate and this power has got to be exercised by a Magistrate with great care and caution. Where a Magistrate is satisfied that in view of the imminent danger of breach of peace an order of attachment of the subject-matter of the dispute should be issued without hearing the other side, he can certainly issue such an order but it should be apparent on the face of the order that the Magistrate was so satisfied that there was a plausible ease for exercising extraordinary powers vested in the Magistrate under this proviso without issuing notice to the other side.
In AIR 1964 J & K 1, it has been laid down:
The preliminary order which gives jurisdiction to the Magistrate in proceedings under S 145 and the order of attachment are very important and they have the effect of causing serious inconvenience and prejudice to one of the parties at least. Such extra-ordinary powers should not be exercised as a matter of routine, but should be exorcised only in emergent cases necessitating immediate action. It is not only desirable but necessary that the trial Magistrate should apply their own mind to the facts of a particular case; such important orders should not be left to the discretion and intellectual capacities of their clerks. This practice is highly objectionable. . . .
7. In another authority, 1963 Kash LJ 63 : AIR 1965 J & K 49, it has been held that the imminence of a breach of peace is an essential ingredient and perhaps the only important ingredient to give jurisdiction to a Magistrate to start proceedings and pass final orders under Section 145. Cr. P.C, Mere dispossession however wrongful, is not sufficient to give jurisdiction to a criminal court to start proceedings under Section 145. Such cases are eminently matters which reveal a dispute of a civil nature and can be better adjudicated upon in civil courts than under the speedy provisions of Section 145 of the Cr. P.C.
8. Again in 1963 Kash LJ 108 : AIR 1964 J & K 1, it has been indicated when an order of attachment should be issued under Section 145(4).
9. Then in another DB authority, 1963 Kash LJ 217, all the guides for starting proceedings under Section 145 and particularly for taking action under Section 145(4) have been laid down.
10. The above decisions of this Court are based upon the decisions of the other Indian High Courts.
11. In view of these frequent directions from this Court, this Court shall be compelled to take disciplinary action against such Magistrates who disregard the authorities and the dicta laid down by this Court from time to time.
12. In this case I have enumerated in detail what the defects in the proceedings are. They may be summarized as under:
(1) The application does not show when it was presented.
(2) The Magistrate has not at all applied his mind to either the application under Section 145 or the application for attachment.
(3) On the application for attachment the Magistrate has written the word 'attach' which is a novel procedure and unwarranted by any provision of the Cr. P.C.
(4) The statement of the applicant has been recorded by some clerk.
(5) The composite order under Sections 145(1) and 145(4) has been written by another clerk.
(6) This order bears no date nor has the Magistrate ever cared to mention the date under his very brief initials at various places in the proceedings.
(7) There is nothing on record to satisfy the Magistrate to start proceedings under Section 145, whether it be Sub-section (1) or Sub-section (4) in this case.
(8) No copy of any revenue record or other document to show a prima facie case of the possession of the petitioner was produced before the Magistrate.
(9) Even the mutilated certified copy of the Collector's order, dated 10.12-1963. clearly connotes that on account of the previous proceedings under Section 145 which had been decided by the ADM. Anantnag, 5 kanals and 10 marlas of land was to remain with one party and an almost equal quantity of land was to remain with the other party. Even this has not been looked info. If the Magistrate or even his clerk who managed the whole show had cared to go through this document, it should have been clear to him that proceedings under Section 145 could not be initiated.
(10) The attachment order has been issued without any shadow of grounds having been disclosed for such a drastic order.
(11) The whole thing has been managed by the petitioner himself with the clerks of the Magistrate. The petitioner was unrepresented and the clerks have in turn managed the Magistrate
(12) Mr. Karim has rightly complained that when Gulla Shah saw that the crops of Munawar Bhat were ready for harvesting, he took recourse to this extraordinary procedure to get Munawar Bhat deprived of the possession of the land as well as the crops thereon. There can be no greater abuse of the process of the Court. The entire proceedings have to be quashed, and they are hereby quashed. A separate explanation will be called from the then Munsiff Magistrate, Anantnag, Mr. Mohd. Shafi. to show cause why disciplinary action should not be taken against him His explanation shall be placed before me as soon as it is receiver] He should be directed to submit his explanation within a fortnight of his getting a copy of this order.