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2011 DIGILAW 617 (JK)

Ghulam Hassan Mutoo v. Tehsildar & Ors.

2011-11-09

MANSOOR AHMAD MIR

body2011
1. Petitioner presented an application in terms of section 145 Code of Criminal Procedure (for short Cr. P.C) before the Chief Judicial Magistrate, Srinagar for drawing proceedings in terms of the said mandate of law and also to attach the property mentioned in the said petition, was transferred to Judicial Magistrate (Judge Small Causes), Srinagar and vide order dated 06.12.2006 preliminary order was drawn and parties were directed to put up their respective written statements of along with documents in their support. Trial court after considering the entire material vide order dated 17.03.2007 submitted the case to the Court of Principal District Judge, Srinagar in terms of Section 146 Cr. P.C. Respondents 4 to 7 assailed said order dated 17.03.2007 by the medium of revision petition before the Court of Principal Sessions Judge, Srinagar, was transferred to Additional District & Session Judge, Srinagar. Revision petition came to be allowed and the entire proceedings, i.e., drawing of preliminary order and subsequent order came to be set aside vide order dated 31.03.2010. Feeling aggrieved the petitioner has questioned the same by the medium of this petition on the grounds taken in it. 2. Revisional Court held that neither the petitioner herein was in possession at the time 'of filing of the application under section 145 Cr. P.C. nor was in possession even two months prior to it in terms of section 145(1) Cr. P.C., further held that the trial court had no jurisdiction in view of the admission made by the petitioner in main petition under section 145 Cr. P. C. It further held that already suit was pending between the parties, thus the application under section 145 Cr. P. C. was not maintainable. It is apt to reproduce relevant portion to para 2 and 4 of the main application filed by the petitioner under section 145 Cr. P. C. herein: "That the ancestral property left by the father of the applicant is unpartitioned. The copy of the report submitted by SHO P/S Mehraj Gunj is annexed herewith this application as Annexure-A for kind perusal." "4. That neither the applicant nor non-applicant are in possession of the property left by the father. P. C. herein: "That the ancestral property left by the father of the applicant is unpartitioned. The copy of the report submitted by SHO P/S Mehraj Gunj is annexed herewith this application as Annexure-A for kind perusal." "4. That neither the applicant nor non-applicant are in possession of the property left by the father. That the non-applicant No. 1 and 2 having strong muscle powers and high influence having grip on said property left by the father, but few days back elders of the locality along with the SGO and zonal president, have intervened in order to settle the matter amicably but the refusal on the part of non-applicant no. 1 and 2 have forced SHO to put non-applicant No. 1 and 2 behind the bars. It is correct to point out here that the in habitants of the locality is facing hardships, difficulties and necessary problems without their fault." 3. While going through the said pleadings petitioner had admitted that the property is unpartitioned, meaning thereby it is still joint. 4. It is apt to reproduce Section 145 Cr. P. C. herein: "145. Procedure where dispute concerning land, etc. is likely to cause breach of peace (1) Whenever a Chief Judicial Magistrate, or any other Judicial Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. (2)...... (2)...... (3)……… (4) Inquiry as to possession: The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as man be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein; Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date; Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section." 5. In view of the mandate of this section, proceedings under section 145(1) Cr. P. C can be pressed into service only when the applicant alleges that he is in possession or was dispossessed within two months from the date of filing of the application under section 145 Cr. P. C. Petitioner has admitted in para-4 supra that he is not in possession. Thus on his own showing application under section 145 Cr. P. C. was not maintainable. 6. The Apex Court in case Lophinoris Shangpling vs. Hamboy Shullai, 2001 Cri. L. J. 2943, has held that proviso to section 145(4) Cr. P. C cannot be invoked to entangle dispute of farther date and when petitioner is not in possession of disputed property on the date of passing of preliminary order or was not in possession within two months before passing of such order, proceedings are not maintainable. 7. This Court in cases Mst. Urvashi & ors Vs. State & anr., 1989 KLJ 11; Haji Habib Ullah Shah & ors Vs. SHO & Ors., 1985 KLJ 185 and Sattar father & three ors. Vs. Mst. 7. This Court in cases Mst. Urvashi & ors Vs. State & anr., 1989 KLJ 11; Haji Habib Ullah Shah & ors Vs. SHO & Ors., 1985 KLJ 185 and Sattar father & three ors. Vs. Mst. Khatji, 1986 KLJ 677 has held that when admittedly property to joint, proceedings under section 145 Cr. P. C. are not competent, but if it is alleged to be joint but neither shown or proved to be joint, in that eventuality proceedings are competent. 8. Applying the test in the instant case, petitioner has admitted, as discussed hereinabove, that the property is joint and neither petitioner nor respondents are in possession. Thus, the entire proceedings are abuse of process of law. 9. The revisional court has rightly allowed the revision petition. The inherent jurisdiction, i.e., remedy in terms of section 561-A can be pressed into service only when the proceedings are abuse of process of law or have caused miscarriage of justice or any order is required to be passed for securing the ends of justice. It is beaten law of the land that this remedy is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. The Apex Court has also laid down the parameters and guidelines in cases titled as K.L.E. Society Vs. Siddalingesh, 2008 AIR SCW 1993; A. P. Vs. Bajjoori Kanthaiah, 2008 AIR SCW 7860 and Reshma Bano Vs. State of Uttar Pradesh, 2008 AIR SCW 1998. 10. In the given circumstances, this petition is not maintainable and is accordingly dismissed along with all CMPs. Interim direction shall stand vacated.