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2010 DIGILAW 118 (JK)

Faqir Chand v. Talib Hussain

2010-03-05

SUNIL HALI

body2010
1. This revision petition is preferred against order dated 22.12.2006, passed by the learned Additional Sessions Judge Reasi. 2. The dispute in this revision petition relates to the power of the Magistrate under Section 145 Cr. P. C. It is contended that while initiating proceedings under Section 145 Cr. P.C, no preliminary order has been drawn by the Magistrate concerned. 3. In order to analyze the controversy involved, it be seen that an application was filed before the Sub Divisional Magistrate, Reasi for initiating proceedings under Section 145 Cr. PC. On receipt of the application, summons were issued to non-applicants to file their objections. Objections were filed by the non-applicants. After filing of the objections, the Magistrate recorded satisfaction with regard to the existence of the dispute regarding possession of the property and arrived at a conclusion that there is likelihood of the breach of the peace. He proceeded in the matter by drawing preliminary order under Section 145 Cr. P.C. 4. Mr. Thakur, learned counsel for the petitioners contends that there was no defect in the order of the Magistrate as the provisions of Section 145 Cr. P.C were complied with. His contention is that after filing the application, notices were issued to the non-applicants. They filed their objections. After considering the same, the Magistrate has drawn preliminary order. Proceedings anterior to the drawing of the preliminary order are only in the nature of preliminary enquiry and after satisfying himself on the basis of the said enquiry, preliminary order has been drawn. 5. I have heard learned counsel for the parties and perused the record. 6. Section 145 Cr.P.C confers powers on the Magistrate to initiate proceedings where there exists a dispute regarding possession of the property, which may entail breach of peace. The Magistrate is required to record his satisfaction while drawing preliminary order. After drawing the preliminary order, he assumes jurisdiction under Section 145 Cr.P.C. In the instant case, after having received the application, the Magistrate has not resorted to this course. He has proceeded under the said Act without drawing preliminary order. If there was no preliminary order drawn by the Magistrate on the application, proceedings initiated by him after receipt of the application would be nullity. 7. As indicated above, it is only after drawing of preliminary order, the Magistrate assumes jurisdiction to proceed in the matter. The contention of Mr. If there was no preliminary order drawn by the Magistrate on the application, proceedings initiated by him after receipt of the application would be nullity. 7. As indicated above, it is only after drawing of preliminary order, the Magistrate assumes jurisdiction to proceed in the matter. The contention of Mr. Thakur that proceedings anterior to drawing of the preliminary order be considered as preliminary enquiry, cannot be accepted. For the reasons stated above, I find no merit in this revision petition, the same is dismissed.