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2012 DIGILAW 682 (JK)

Farced Ahmed v. Parvez Ahmed & Ors.

2012-10-18

MANSOOR AHMAD MIR

body2012
1. By the medium of this petition, filed under Section 561-A of Code of Criminal Procedure (for short, Cr.P.C.), the petitioner has invoked the inherent jurisdiction of; this Court seeking to quash the proceedings drawn and the order dated 29.09.2012 passed by the Principal Sessions Judge, Jammu, in a criminal revision petition, titled as, Parved Ahmad v. Fareed Ahmed & others, on the grounds taken in the memo of petition. 2. It appears that petitioner Fareed Ahmad filed two applications under Section 145 Cr.P.C. before the Court of Chief Judicial Magistrate, Jammu, came to be transferred to the Court of Judicial Magistrate 1st Class (3rd Additional Munsiff), Jammu, for disposal under law. The transferee court, i.e., Judicial Magistrate 1st Class, after examining the contents of the petition drew preliminary order in terms of Section 145(1) Cr.P.C. and also ordered for attachment of the property in terms of Section 145(4) Cr.P.C. by a composite order dated 26.09.2012. 3. As per the record, the order of attachment stands implemented on Spot. 4. Parvez Ahmed, Rrespondent No.1 herein, feeling aggrieved questioned the said order by the medium of criminal revision petition before the Court of Sessions Judge, Jammu, so far as it related to attachment of property. Learned Sessions Judge vide order dated 29.09.2012 while admitting the revision petition, stayed the operation of order till 04.10.2012 and also send for record of trial court. Fareed Ahmed, petitioner herein, made an application before the Sessions Judge, Jammu on 01. 10.2012 for vacation of impugned order on the ground that the revision was not competent in terms of Section 435(4-a) Cr.P.C. 5. It is contended that the revisional court did not hear the petitioner which constrained him to file the petition in hand. Further, it is contended that Parvez Ahmed, Respondent No.1 herein, did not question the preliminary order, i.e., the order drawn by the learned Magistrate terms of Section 145(1) Cr.P.C., but has assailed the said order only the extent of attachment of property. 6. Relevant portions of criminal revision, filed by Parvez Ahmad, Respondent No.1 herein, before the Court of Sessions Judge, Jammu, are reproduced hereunder: "In the matter of: Criminal Revision Petition under Section 435 of Criminal Procedure Code against the order dated 26.09.2012 passed by Learned 3rd Additional Munsiff (JMIC) Jammu directing attachment of the property of the petitioner with a prayer for setting aside the same. 4. 4. That after Tailing to forcibly occupy the suit land, the Respondent No.1, filed an application u/s 145 CrPC before the Court of Learned 3rd Additional Munsiff OMIQ Jammu and has obtained an order of attachment of the suit land by concealing and suppressing the factum of pendency of the civil suit and interim restraining order operating against him. Further, though the attachment has not been effected on spot, the Respondent No. 1 along with his brother and 7-8 persons, again on 26.09.2012 along with some persons, unsuccessfully tried to forcibly occupy the suit land in violation of the order of the Hon'ble Court regarding which the petitioner has already filed a contempt petition against the Respondent No. 1 and his brother. 5. That the petitioner is seriously prejudiced and aggrieved of the order dated 26.09.2012 passed by the Court of Learned 3rd Additional Munsiff (JMIC) Jammu directing the attachment of the land and shops in question thereby dispossessing the petitioner there from. Copy of the order is enclosed. 6. That the order dated 26.09.2012 passed by the Court of Learned 3rd Additional Munsiff QMIC) Jammu is illegal, arbitrary and without jurisdiction besides having been obtained by playing fraud and suppressing material facts and is impugned herein on following amongst other facts: ii. That the order impugned is illegal, arbitrary and without jurisdiction as the Court below has no jurisdiction to direct the attachment of the land and shops of the petitioner without recording a definite finding that the matter is of emergent nature as mandated by 3rd proviso to Section 145 (4) CrPC and the Court below only recording the satisfaction as required under Section 145 (1) CrPC as to the existence of a dispute, has proceeded to exercise the jurisdiction vested in it without first being satisfied with the existence of urgency as required by the proviso to Section 145 (4) CrPC a such the order impugned is liable to be set aside on this ground alone. iii. That while passing the order impugned, the Court below has failed understand the distinction between the requirement of Section 145(1) CrPC and proviso to Section 145(4) CrPC. iii. That while passing the order impugned, the Court below has failed understand the distinction between the requirement of Section 145(1) CrPC and proviso to Section 145(4) CrPC. Whereas, u/s 145(1) CrPC, the only satisfaction required to be recorded is to the effect of existence of a dispute which is likely to cause breach of peace but the satisfaction required to be recorded under 3rd proviso to Section 145 (4) CrPC is as to the existence of emergency to attain jurisdiction to direct attachment of the property. A bare perusal of the order impugned reveals that no satisfaction as to the existence of any emergency has been recorded by the Court below before directing the attachment and this vitiates the order impugned and the same is liable to be set aside" 7. As discussed herein above, Respondent No. 1 herein did not question the preliminary preliminary order drawn. Virtually in paragraph 6(ii), responder No.1 has admitted that the court below, i.e., Judicial Magistrate 1st Class has recorded satisfaction as required while drawing preliminary order terms of Section 145(1) Cr.P.C, but has not recorded satisfaction ; required under Section 145(4) Cr.P.C. Even respondent No. 1 has not taken this ground before the revisional court and has not questioned to said order. 8. Admittedly, Respondent No.1 did not question the preliminary order drawn in terms of Section 145(1) Cr.P.C., but has questioned to order dated 26.09.2012 only so far as it relates to attachment of proper. It is beaten law of the land that the order of attachment passed in terms of Section 145(4) Cr.P.C. is interlocutory one. My this view is fortified by a judgment delivered by the Full Bench of this Court in Brij Lal Chakoo v. Abdul Ahad Nishati, Cr. Revision No.28 of 1979 and other connected matters. It would be relevant to reproduce paragraph 39 hereunder: "39. In view of the majority judgment, it is held that a revision petition against an order under Section 145 (1) Cr.P.C. in the circumstances explained in the judgment is maintainable ;but the bar of Section 435(a)(4) Cr.P.C. is attached to a revision petition filed only against the order of attachment, under, the third proviso to sub-section (4) of Section 145 Cr.P;C." 9. Thus, admitting the revision petition and proceedings drawn by the revisional court are without jurisdiction. 10. Thus, admitting the revision petition and proceedings drawn by the revisional court are without jurisdiction. 10. Learned counsel for Respondent No. 1 argued that drawing of proceedings under section 145(1) Cr.P.C. are without jurisdiction on the ground that a civil suit is already pending in the Court of 1st Civil Subordinate Judge, Jammu, and an interim exparte restraint order has been passed, which is in force. He has also produced a photocopy of order dated 07.08.2012, made part of the file. 11. It would be appropriate to mention here that Respondent No. 1 has not raised this ground in the revision petition. For the first time he is taking this plea before this Court. What would be the effect of that restraint order, I deem it proper to refrain from making discussion and offer comments, because it is for Respondent No. 1 herein to lay a motion before the Court of Judicial Magistrate 1st Class (3rd Additional Munsiff), Jammu or to file objections and resist the applications and proceedings drawn on the said ground. 12. In the given circumstances, one comes to an inescapable conclusion that the revision filed against an interlocutory order is barred and is not maintainable thus is abuse of process of law, therefore, the revision petition and the orders passed by the Court of Learned Sessions Judge, Jammu are quashed. 13. Judicial Magistrate 1st Class (3rd Additional Munsiff), Jammu is directed to decide the applications filed by the petitioner under Sections 145(1) and 145(4) Cr.P.C. within two months from today. Respondent No.1 is at liberty to lay a motion before the trial court for dropping of the proceedings or withdrawing attachment order, if advised, within one week from today. If such an application is filed by Respondent No.1, in that eventuality the trial court is directed to decide the same within two weeks thereafter. 14. Parties through their counsel are directed to appear before the Judicial Magistrate 1st Class (3rd Additional Munsiff), Jammu on 25th October 2012. 15. Send down the record along with a copy of this order to the respective courts, i.e., trial court and revisional court. 16. Disposed of along with all CMAs.