Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 104 (JK)

S. Sardool Singh v. Teja Singh

2001-05-16

SYED BASHIR-UD-DIN

body2001
JUDGEMENT Per Sayed Bashir-ud-Din J 1. Order dated: 12.09.1987 of 2nd Addl; Session Judge, Srinagar in revision against order dated: 19.09.1984 of Judicial Magistrate (Judge Small Causes Court) Srinagar in criminal file 27/15 of 1987 titled Sardar Sardool Singh vs. State & Ors. is impugned in this revision petition. 2. On report of P/SSherri that the dispute likely to cause breach of peace in respect of shop at Amirakadal, Srinagar. The Judicial Magistrate after recording satisfaction passed preliminary order U/s 145 (1) Cr.P.C. followed by an order of attachment under provision 3 to Sub-Section 4 of Section 145 Cr.P.C. The other side appearing in the proceedings moved the Magistrate for dropping the proceedings on the ground that the factum of possession of the shop has been finally decided and adjudicated by the two civil courts of City Judge, Srinagar and Addl; District & Session Judge, Srinagar. The Magistrate vide impugned order dropped the proceedings after affording opportunities to the parties. Against this order of 19.9.1984 a revision was filed. The revision came to be decided by the 2nd Addl; District & Session Judge on 12.09.1987, after the Session Court found that the impugned order is not vitiated by any legal infirmity or procedural irregularity. 3. This revision is directed against the said order Addl; District & Session Judge, Srinagar. Despite efforts of this court to trace the parties or the counsel, neither parties nor their counsel could be served, as the parties and their counsel are not present on the available addressed at Srinagar as given in the petition. 4. In the over all facts and circumstances of the case, fact that the case is pending before this court for last over 14 years, this court in exercise of powers u/s 440 Cr.P.C. is dispensing with the presence of the parties. 5. The examination of record shows that the impugned order dated : 12.09.1987 of learned Addl; District & Session Judge, Srinagar with which order of Magistrate dated : 19.09.1984 merged has been passed within jurisdiction and within confines of law. The matter has been examined in the right perspective and no legal infirmity or jurisdictional error or procedural irregularity is attached to the order. Both the courts have taken into consideration material available on record and the fact that the two courts have returned concurrent finding of fact regarding possession of the shop in question. The matter has been examined in the right perspective and no legal infirmity or jurisdictional error or procedural irregularity is attached to the order. Both the courts have taken into consideration material available on record and the fact that the two courts have returned concurrent finding of fact regarding possession of the shop in question. After taking note of legal position as envisaged in Haji Habibullah vs. S.H.O. & Ors. (SLJ 1985 385) and Aksarul-Taidad Anal Tashiari vs. Rasool Dar & Ors. (JKLR 1972 268) and Razak Dar vs. Mst. Rehmi & Ors. (JKLR 1977 391), the court found that as there has been final orders on question of possession of shop by competent Civil Courts, the Magistrates response in following decisions is not bad and he has not committed any irregularity or illegality in dropping the proceedings. The order has been found to be correct and proper. Contextually following observation of the Apex Court in Ram Sunder vs. State (AIR 1985 SC 472) is noted as under: "When a Civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceedings u/s 145 Cr.P.C. There is no scope to doubt or dispute that position that decree of the civil court is binding on the criminal court in a matter like the one before us. ... In the event of a decree of a civil court the criminal court should not be allowed to invoke its jurisdictional particularly when possession is being examined by the civil court and parties are in position to approach the civil court for interim orders such as injunction or appointment of receivers for adequate protection of the property during pendency of dispute order u/ s 145 Cr.P.C. quashed... We leave it open to parties to move the appellate Judge in Civil Litigation for appropriate interim orders." 6. The other aspect of the matter is that when an application u/s435 Cr.P.C. has been made to District and Session Judge (which term includes Additional District & Session Judge) for exercise of revisional jurisdiction and the Session Judge pursuant thereto has exercise the jurisdiction and passed order, can a further revision lie to the High Court against the order of Session Judge in exercise of revisional jurisdiction. Chapter 32 of the Cr.P.C. Which covers provisions of reference and revision does not provide for entertaining a further revision against an order passed already in revision by the Session Judge. The appeal or revision is creation of statute and no litigant has right to appeal or revision unless specifically provided for by a statute. In my view the revision even on this court is mis-conceived. 7. The result, the revision petition is dismissed. Inform court below of this order and send back the record.