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2006 DIGILAW 222 (JK)

Nazir Ahmad Rather v. Gh. Mohd. Dar

2006-10-10

MANSOOR AHMAD MIR

body2006
1. This revision petition is directed against the order dated 30th November, 2005, hereinafter referred to as impugned order, passed by learned Sessions Judge, Anantnag, in revision file No. 18 titled as Nazir Ahmad Rather v. Gh. Mohammad Dar and others, whereby and where-under order passed by Executive Magistrate, 1st Class Doom, came to be upheld. 2. Heard. Perused. Considered. It is profitable to give a flask back of the case, the womb of which has given birth to the present revision petition. 3. It appear that on 20th May, 1996 an application under Section 45(1) of Criminal Procedure Code, hereinafter for short Code, came to be filed before the Executive Magistrate First Class Doru, titled Nazir Ahmad Rather v. Gull Mohammad Dar & Ors and the property mentioned in the application came to be attached. 4. Feeling aggrieved of the said order, Ghulam Mohammad Dar, respondent No.l, filed a revision petition before the Additional District Magistrate (Assistant Commissioner), Anantnag and interim order dated 24th June, 1996 came to be passed whereby and whereunder the operation of order dated 20.5.1996 passed by Tehsildar Ex. Magistrate Dooru, was stayed. The order dated 24th June, 1996 came to be assailed by the medium of revision petition No. 13/1996 by Nazir Ahmad Rather, petitioner herein, before this court, which came to be dismissed vide order dated 29th December, 1997. It is profitable to reproduce the order dated 29lh December, 1997, herein: "Mr. Malik Ghulam Hassan, for the petitioner. Upon hearing Mr. Malik Ghulam Hassan advocate, and on examination of the record, it transpires that the interim order dated 24-6-1996 of which the quashment is prayed for in this petition having merged into the final order dated 17-3-1996 against which revision 9/97 has been filed and is pending, the impugned interim order of 24-6-96 no more survives for adjudication and therefore, the legal requirement of examining the order dated 24-6-96 in the context of provision of 561-A Cr. P.C is no more amenable for I adjudication in this petition. This position is conceded by the counsel for the petitioner. Hence petition No. 13/96 is accordingly disposed of as dismissed." It appears that during the pendency of revision petition No.13/96, Additional District Magistrate finally disposed of the revision petition titled Gh. Mohammad Dar v. Nazir Ahmad Rather vide order dated 17th March, 1997. This position is conceded by the counsel for the petitioner. Hence petition No. 13/96 is accordingly disposed of as dismissed." It appears that during the pendency of revision petition No.13/96, Additional District Magistrate finally disposed of the revision petition titled Gh. Mohammad Dar v. Nazir Ahmad Rather vide order dated 17th March, 1997. It is profitable to reproduce operative of the said order herein: "I have perused the records and gone through the file. Affidavit of the applicant and am satisfied that there is no apprehension of breach of peace on the spot and the land in question has been attached from the possession of the applicant. It is therefore, ordered that the land in question be released in favour of the person from whose the land has been attached." 5. Petitioner, Nazir Ahmad Rather, feeling aggrieved of the said order filed a revision petition No.09/1997 before this court and assailed the said order. Revision petition came to be allowed vide order dated 07th September, 1998. It is profitable to reproduce the operative part of the said order herein: "The revision petition is allowed and the impugned order recorded by the Addl. District Magistrate on 17.3.1997 is set aside. The matter will go back to the concerned Executive Magistrate who will dispose of the proceedings in accordance with law within a period of two months from the date of receipt of this order." 6. In terms of order dated 07th September, 1998 passed by this Court, the proceedings came up before Tehsildar Executive Magistrate First Class, Doru. Executive Magistrate held that entire proceedings were without jurisdiction on the ground that preliminary order has not been passed in terms of Section 145 of the Code. 7. Feeling aggrieved of the said order, petitioner preferred a revision petition before learned Sessions Judge, Anantnag, which came to be dismissed vide impugned order. 8. The moot point for consideration is whether orders passed by Executive Magistrate First Class Doom and learned Sessions Judge, Anantnag, are legally correct. 9. I am of the considered view that both the orders are valid and legally correct for the following reasons. 10. It appears that order dated 20th May. 1996 came to be passed by Executive Magistrate, Photostat copy whereof is contained at page 104 of the record of Executive Magistrate First Class Doom, whereby and whereunder the property in question came to be attached. 10. It appears that order dated 20th May. 1996 came to be passed by Executive Magistrate, Photostat copy whereof is contained at page 104 of the record of Executive Magistrate First Class Doom, whereby and whereunder the property in question came to be attached. It also appears that without passing preliminary order attachment order came to be passed. Thus, without passing the preliminary order property came to be attached. 11. It is beaten law of the land that before initiating proceedings under Section 145 of the Code, the Court has to satisfy whether the action is to be drawn in terms of Section 145(1) of the Code and then property can be attached if required. The proceedings are without jurisdiction if preliminary order is not passed. In the instant case, without passing the preliminary order, property came to be attached. Thus entire proceedings are without jurisdiction. 12. This Court in case titled Ahsan Sofi & Ors. v. Sona Mir, reported in AIR 1958 J&K 17 held that the proceedings initiated without preliminary order are without jurisdiction and any proceedings conducted subsequent to that are without jurisdiction and liable to be quashed. It is profitable to reproduce relevant portion of para-2 of the said judgment herein, which reads as under: "................ In the present case we find that no preliminary order has been drawn up by the trial Magistrate at all. He has simply repeated the contents of the application under S.I 45. Cr.P.C. made before him by (he non-applicant and then has directed that under sub-s. (4) of S. 145. Cr.P.C. the police should attach the tree. This is no compliance with the provisions of S. 145(1) Cr.P.C. Where the preliminary order made under sub-s. (I) of S. 145 is defective the defect can he cured under S.537. Cr. P. C. But where the order does not exist at all it is difficult to visualize how the defect can be cured under S.537. This is no compliance with the provisions of S. 145(1) Cr.P.C. Where the preliminary order made under sub-s. (I) of S. 145 is defective the defect can he cured under S.537. Cr. P. C. But where the order does not exist at all it is difficult to visualize how the defect can be cured under S.537. Cr.P.C. the relevant portion of which reads as follows: "Subject to the provisions hereinbefore contained no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account - (a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before....................under this Code, .............Unless such error, omission or irregularity has in fact occasioned a failure of justice." A bare perusal of this provision shows that it is only an error, omission or irregularity in the order that can be cured under S.537 (a). But where no order has been drawn up in terms of sub-s. (1) of S.145, S.537. Cr.P.C., would not be applicable and the invalidity is incurable. Neither of the two judgments referred to above runs counter to this proposition. There is another substantial reason why no action under sub-s. (4) of S.145, under the second proviso of which the order of attachment has been made by the trial Magistrate in this case, can be taken by a Magistrate until he has passed a preliminary order under sub-s. (1) of S.145. For this a reference may be made to the provisions of S.145, Cr.P.C. It is unnecessary to reiterate the relevant sub-sections in this judgment. It would be sufficient to indicate here that it is only after the Magistrate has complied with the provisions of sub-s. (1) of S.145 that the provisions of sub-s. (4) will come into play. The provisions of this sub-section begin thus: "(4) The Magistrate shall then without reference ............. It would be sufficient to indicate here that it is only after the Magistrate has complied with the provisions of sub-s. (1) of S.145 that the provisions of sub-s. (4) will come into play. The provisions of this sub-section begin thus: "(4) The Magistrate shall then without reference ............. Decide whether any and which of the parties ......................." and the power of the Magistrate to issue order and the power of the Magistrate to issue order attaching the subject of the dispute in the case, which he considers one of emergency, is contained in the second proviso to this sub-section and, therefore, in our opinion this power cannot he exercised unless the Magistrate lias made some sort of compliance with the provisions of sub-s. (1) of S. 145. The failure to draw up the preliminary order in itself will cause prejudice to the other side." 13. This court in case titled Manga v. Dhana reported in 1971 JKLR 414 held that if a preliminary order is defective or without jurisdiction the entire proceedings are void. 14. Keeping in view the above discussion, the entire proceedings drawn are without jurisdiction. 15. The grievance projected by the petitioner is that direction to deliver the possession of property to Ghulam Mohammad Dar is illegal and without any justification. It appears that as per page 78 of the trial court record the property was attached from the possession of Ghulam Mohammad Dar. After vacation of the attachment order, Patwari has made entry in red ink in `Girdawari which also discloses that at the time of attachment property was in possession of Ghulam Mohammad Dar and thereafter interms of order passed by this Court dated 7th September, 1998 passed in Cr. Rev. No.9/97 the property was once again attached from the possession of Ghulam Mohammad Dar. And in terms of order passed by Tehsildar and learned Sessions Judge possession was delivered back to Ghulam Mohammad Dar. Thus, at this stage, possession lies with Ghulam Mohammad Dar. 16. Learned counsel for the parties stated at Bar that Civil suits are pending before civil courts and order of interim injunction came to be passed. 17. Civil court is competent to decide who is entitled to possession. Thus, at this stage, possession lies with Ghulam Mohammad Dar. 16. Learned counsel for the parties stated at Bar that Civil suits are pending before civil courts and order of interim injunction came to be passed. 17. Civil court is competent to decide who is entitled to possession. Any observation made by the trial court, Sessions Court or by this court shall not prejudice the rights of the parties in any way and shall not influence the civil court while determining the factum of possession. 18. I find no illegality has been committed by the learned Sessions Judge, Anantnag, or by the Executive Magistrate First Class Doru. 19. Accordingly the revision petition is dismissed. Record of revision petitions be detached and the Registry is directed to send down the record along with a copies of this order to Sessions Court Anantnag and Executive Magistrate First Class, Dooru. Revision petition is dismissed.