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Qadir Khan and ors. Vs. New Kashmir All City Transport, Drivers Sgr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1977CriLJ1190
AppellantQadir Khan and ors.
RespondentNew Kashmir All City Transport, Drivers Sgr.
Cases ReferredIn Bokaro and Ramgur Ltd. v. State of Bihar
Excerpt:
- .....the court below were without jurisdiction and could not lie during proclamation of emergency as right to property guaranteed under article 19 was suspended. all the proceedings taken by the courts below were therefore, void the learned judge seems to have been impressed by this argument. he accordingly directed that the petition be placed before a larger bench as it raised an important question of law whether a party could invoke the jurisdiction of a magistrate under section 145, cr. p. c. when the order of emergency is in force. the file was therefore, placed before the hon'ble chief justice who was pleased to refer the case to a division bench. this is how the case has come before us.5. appearing for the petitioners mr. s.t. hussain has contended that as the president has.....
Judgment:

Mian Jalal-Ud-Din, J.

1. This revision is directed against the order of Chief Judicial Magistrate Srinagar dated 15-6-1976 affirming the order of City Munsiff Srinagar dated 5-4-1976 in proceedings Under Section 145, Cr. P. C. and declaring the respondents to be in actual physical possession of the disputed room.

2. Briefly speaking the facts of the case, as disclosed from the judgments of the Courts below, are that the respondents who are the office-bearers of the New Kashmir City Transport Drivers Association moved an application Under Section 145, Cr. P. C. before the Judicial Magistrate, Srinagar. They contended that they were in possession of a room used by them as office of the Association. They alleged that 3 days before the presentation of the application they were forcibly dispossessed by the petitioners herein which resulted in apprehension of breach of peace regarding the possession of the disputed room. The Magistrate on being satisfied about the existence of a dispute between the parties as also apprehension of breach of peace on spot initiated proceedings Under Section 145, Cr. P. C. and drew up the preliminary order directing the parties to produce respective documents and affidavits of witnesses before him. On perusal of the documents ; and affidavits and after hearing the arguments in the case, the learned Magistrate passed the impugned order declaring the respondents herein to have been in the actual possession of the disputed room. Aggrieved by this order the petitioners herein filed the revision petition before the Chief Judicial Magistrate who upheld the order of the trial Magistrate and dismissed the revision petition.

3. It is pertinent to refer here that neither before the trial court nor before the revisional court of Chief Judicial Magistrate was the question of jurisdiction raised as is sought to be raised now before us.

4. The revision was admitted by a single Judge of this Court. It was argued before him that proceedings Under Section 145, Cr. P. C. initiated before the court below were without jurisdiction and could not lie during proclamation of Emergency as right to property guaranteed Under Article 19 was suspended. All the proceedings taken by the courts below were therefore, void The learned Judge seems to have been impressed by this argument. He accordingly directed that the petition be placed before a larger Bench as it raised an important question of law whether a party could invoke the jurisdiction of a Magistrate Under Section 145, Cr. P. C. when the order of Emergency is in force. The file was therefore, placed before the Hon'ble Chief Justice who was pleased to refer the case to a Division Bench. This is how the case has come before us.

5. Appearing for the petitioners Mr. S.T. Hussain has contended that as the President has proclaimed emergency Under Article 332 and has also suspended the enforcement of Fundamental Rights guaranteed Under Article 19 therefore, Section 145, Cr. P. C. which is invoked by a party for the enforcement of his property rights cannot be invoked during the time the emergency remains in force. The courts below should have therefore, stayed their hands and should not have initiated proceedings Under Section 145, Cr. P. C. Dwelling upon this proposition of law, he has submitted that the order of the Magistrate in proceedings Under Section 145, Cr. P. C. would amount to an order made by an authority established by law and would be binding on and enforceable against everybody. The dispute though between two private individuals is nevertheless one in which the court after taking cognizance of the matter gives direction as respects the possession of the property and super-imposes its command thereon. The Magistrate thus assists the person in whose favour the order is made to hold the property, and therefore, while doing so enforces the claim of the petitioner Under Article 19, which right, it is submitted has been 'suspended under the Presidential order.

6. The argument though attractive, is on the lace of it devoid of any legal merit. While invoking Section 145, Cr. P. C, a party does not seek to enforce his fundamental right in respect of immovable property. The object of Section 145, Cr. P. C. is to provide a summary enquiry in regard to possession of immovable property. The section gives power to the Magistrate to initiate action with a view to maintain peace in regard to subject of dispute between the parties. It is well known that the Magistrate's jurisdiction is founded on two factors ; (i) there must be a dispute regarding the possession of immovable property, (ii) the dispute must occasion breach of peace ; In the absence of any of the two factors mentioned above, the Magistrate cannot assume jurisdiction. The scope of these proceedings is limited to the consideration of the question as to who, was in actual physical possession of the disputed property at the time of making preliminary order. The magistrate is not called upon to decide question of title to the property and has not to declare in whom the ownership of property vests. His decision is subject to the result of the civil suit that may be instituted by the aggrieved party in a civil Court of competent jurisdiction. He has not to enforce any fundamental right as guaranteed Under Article 19. Their Lordships of the Supreme Court in State v. Deadley Misra 1954 All LJ 440 : 1954 Cri LJ 1474 while examining the constitutional validity of Section 144, Cr. P. C, observed that the power conferred under the section is to be exercised by a Magistrate in an emergency and is conditioned by the object for which it is to be exercised. There can be no violation of fundamental right guaranteed Under Article 19(1). The same principle holds good in the present case as the power Under Section 145 is to be exercised in certain given conditions.

7. Again, a person alleging violation of his right to hold property must be able to establish his title to that property, In Bokaro and Ramgur Ltd. v. State of Bihar reported in : AIR1963SC516 the Supreme Court has held that where the petitioner's title to property is in dispute and is subject of adjudication in proceedings legally constituted he cannot complain of violation of Fundamental Rights till his title is established as a result of the full-fledged enquiry. It is only after such enquiry that the question that his right to get property has been infringed could arise.

8. Again, in order to attract Article 19(1) the dispute must not be between private individual but it must be between an individual and the State. The State must have infringed the right of an individual guaranteed Under Article 19(1). Right under this article cannot be claimed against an individual. Thus where the dispute is between two private persons regarding their respective right to hold property there can be no question of invasion of right Under Article 19(1). In this view of mine, I am fortified by a decision of the Supreme Court in P. D. Shamdasani v, Central Bank of India reported in : [1952]1SCR391 .

9. The argument of the learned Counsel) also loses sight of the operation of Article 31(1) of the Constitution of India which provides that no person can be deprived of his property otherwise than in due course of law. This would authorise a person to enforce legal process for the restoration of his legal right in the property of which he is deprived. The operation of this Article has not been suspended.

10. There is another aspect of the matter. If the argument of the learned Counsel for the petitioner were to prevail this will not only affect the proceedings Under Section 145, Cr. P. C. but also other relevant proceedings under the Code of Criminal Procedure and all suits wherein right to possession or title is claimed. The same argument can hold good in respect of a civil suit that is instituted by an aggrieved party after proceedings Under Section 145, Cr. P. C. are terminated. This will also produce anomalous results in various ways. e. g. a trespasser who forcibly enters the premises of an owner and squats there can successfully hold the property and the rightful owner will be left without remedy to claim restoration of his property.

11. For the foregoing reasons there is no merit whatsoever, in the contention advanced before us which is hereby rejected.

12. The learned Counsel for the petitioner did not address us on the merits of the case, It is, however, found that both the courts below have considered the evidence on the record and have come to the conclusion that the respondents were in possession of the disputed room on the relevant date. The final order passed being legally sound does not call for any interference by this Court.

13. The result is that the revision petition fails and is hereby dismissed with costs.

A.M.R. Ansari, C.J.

14. I agree.


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