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2008 DIGILAW 490 (JK)

Bashir Ahmad Wani v. Ali Mohd. Wani

2008-12-18

MANSOOR AHMAD MIR

body2008
1. Petitioners have invoked the jurisdiction of this court in terms of Section 561-A of Code of Criminal Procedure, for short `Code, for quashing the orders passed by learned City Magistrate, Srinagar, and learned Sessions Judge, Srinagar, dated 22nd of August, 2006 and 6th of September, 2007, on the grounds taken in the petition. 2. Respondent filed a petition under Section 145 of the Code before learned Chief Judicial Magistrate, Srinagar-came to be transferred to the court of learned City Magistrate, Srinagar. Preliminary order came to be passed on 16th of February, 2006-date of presentation of the petition. Petitioners-non-applicants appeared and filed objections and resisted the petition. After scanning the evidence, learned trial court-City Magistrate, granted the application and held that respondent-applicant came to be dispossessed by the petitioners herein-non-applicants within two months prior to the date of passing of the preliminary order and directed the petitioners to handover the possession of the disputed shop run under the name and style of AMCO TRADERS situated at Buchwara, Dalgate. Feeling aggrieved, petitioners filed revision petition before the court of learned Principal Sessions Judge, Srinagar came to be dismissed vide order dated 6th of September, 2007. 3. Petitioners have invoked the jurisdiction of this Court on the grounds that the impugned orders came to be passed illegally without application of evidence and have caused miscarriage of justice. 4. Admittedly, second revision is barred. Now, the question is whether petition in hand is maintainable? Admittedly, the petitioners-non-applicants have not challenged the jurisdiction of the City Magistrate, Srinagar, at the time of drawing of proceedings in terms of Section 145 of the Code. They have participated in the proceedings contested the application on various grounds raised in the objections-written statement. The trial court, after scanning the evidence, held as under:- In view of the evidence of the parties and circumstances of the case I have come to the conclusion that the disputed shop was in possession of the applicant namely Ali Mohammad Wani for a long and he was dispossessed forcibly within two months prior to filing of the instant proceedings when the non-applicants were never in possession of this disputed shop before dis-possessing the applicant within two months prior to filing of the instant application due to which there was an is apprehension of breach of peace on spot at the relevant time and after that. Non-applicants are directed to handover the possession of the disputed shop to the applicant and thereafter non-applicants are also restrained from causing any sort of interference into the possession of the disputed shop until and unless the applicant is vacated in due course of law. File after due completion shall go to records. 5. The trial court has, after scanning the evidence, decided the question of fact, upheld by the first revisional court. 6. The question is, can in the given circumstances, the petitioners invoke the jurisdiction of this court which is to be exercised very rarely, sparingly and in rare of the rarest cases. The answer is in negative for the following reasons. 7. The inherent jurisdiction cannot be invoked to determine the disputed questions of fact. The inherent jurisdiction cannot be exercised when parties participated in the proceedings, led evidence, put up their cases across and supported their stand by evidence. After finally deciding the application the loser i.e., party against whom application under Section 145 of the Code and revision petition are decided, cannot say that entire proceedings are without jurisdiction and abuse of process of law or have caused miscarriage of justice and thus, are liable to be quashed. 8. Prior to the amendment, remedy of second revision could have been invoked but now the law has undergone sea change and second revision is barred. While exercising inherent jurisdiction court does not function as a revisional court/ appellate court and High Court cannot hear the petition under Section 561-A of the Code as revision. 9. The petitioners have raised almost all those pleas which were raised before the revisional court. In the given circumstances, the petitioner in hand is virtually a second revision petition in disguise. 10. Apex Court in case titled Deepti Alias Arati Rai Vs. Akhil Rai and others, reported as (1995) 5 SCC 751 held that 561 cannot be invoked when second revision petition is barred. This court in a case titled Pt. Som Dut Vs. Gurbaksh Singh, reported as 1994 SLJ 204 held that the final order passed by court of first instance under Section 145 of the Code and upheld by the revisional court cannot be challenged by the medium of second revision. Same principle is laid down in case reported as 1994 Cr.LJ NOC 459. 11. Som Dut Vs. Gurbaksh Singh, reported as 1994 SLJ 204 held that the final order passed by court of first instance under Section 145 of the Code and upheld by the revisional court cannot be challenged by the medium of second revision. Same principle is laid down in case reported as 1994 Cr.LJ NOC 459. 11. The question that some civil suits are pending, thus the proceedings were barred cannot be now raised. And the plea that shop is joint or the respondent is in possession as a co-owner cannot be gone through by this court for the simple reason that trial court after scanning the evidence opined that respondent was in possession exclusively within two months prior to the passing of the preliminary order and came to be dispossessed. It is a question of fact. It is beaten law of the land that question of fact(s) cannot be disturbed by invoking the inherent jurisdiction of this court as discussed above. 12. The Apex Court in cases reported as 2007 AIR (Criminal) 647, AIR 2008 SC 1528, 2008 AIR SCW 1033, held that inherent jurisdiction may be exercised in order to give effect to the order of the court, to prevent abuse of the process of court and to otherwise secure the ends of justice. But while exercising power under the section court does not function as a court of appeal or revision and this power is to be exercised very rarely and sparingly. 13. Apex Court in recent judgment delivered in case titled K. L. E. Society & Ors. Vs. Siddalingesh, reported as AIR 2008 SC 1602 laid down the same principle. 14. Learned counsel for the petitioner argued that proceedings under Section 145 of Cr. P.C. are liable to be quashed for the simple reason that civil suits are pending between the parties and interim direction came to be passed. The argument is devoid of force for the reasons as stated above that parties have contested the proceedings and came to be taken to its logical conclusion by the trial court. Even otherwise the trial court as well as the revisional court have discussed the issue and have rightly rejected the contention raised by the petitioners. 15. The argument is devoid of force for the reasons as stated above that parties have contested the proceedings and came to be taken to its logical conclusion by the trial court. Even otherwise the trial court as well as the revisional court have discussed the issue and have rightly rejected the contention raised by the petitioners. 15. It is also apt to mention herein that petitioners 3 and 4 have admitted in suit for partition/ possession and declaration that shop in question is in possession of Ali Mohammad Wani but have claimed that property is subject matter of partition and is undivided. 16. It is beaten law of the land that orders passed by the Court in terms of Section 145 of the Code relates to factum of possession and are subject to the orders of the Civil Court. Thus, in the given circumstances, I am of the considered view that trial as well as the revisional courts have rightly passed the orders and cannot be said to be the abuse of process of law and have not caused miscarriage of justice in any way. 17. Keeping in view the above discussion, the petition is dismissed along with all connected CMPs. Send down the record along with a copy of this order.