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2022 DIGILAW 301 (JK)

Muhstaq Ahmad Mir v. Khatijja

2022-06-27

SANJAY DHAR

body2022
Judgment : The petitioners have challenged orders dated 28.03.2012 and 15.06.2012 passed by the Chief Judicial Magistrate, Sopore (hereinafter referred to as the trial Magistrate) as also order dated 01.10.2013 passed by the Principal Sessions Judge, Baramulla (hereinafter referred to as the Revisional Court). 2. It appears that predecessor-in-interest of the respondents, Mst. Khatija, had approached the trial Magistrate by way of an application under Section 145 of the J&K Cr.P.C alleging therein that on 17.02.2012 the petitioners herein had forcibly trespassed into the property bearing Plot No.28 (40x80) under Survey No.13/1-min situated at New Colony, Sopore and when the same was objected to by Mst. Khatija and her relatives, the petitioners herein dragged and thrashed her. On the basis of these assertions, it was pleaded that there is imminent chance of breach of peace and, as such, proceedings under Section 145 of the Cr. P. C be initiated against the petitioners herein. It was claimed by the predecessor-in-interest of the respondents before the trial Magistrate that the property in question (residential house) was allotted by the Housing Department of Jammu and Kashmir Government to one Ghulam Ahmad Ganai in the year 1967, who died unmarried, issueless and intestate on 05.04.2006. The predecessor-in-interest of the respondents claimed to be the sister of deceased Ghulam Ahmad Ganai and according to her, entry in the revenue record was made in respect of the said property in her name after the death of the original allottee. It was her further case before the trial Magistrate that the petitioners herein are strangers and that they have no right either to possess or claim title over the property in question. 3. The learned trial Magistrate passed a preliminary order on 28.03.2012 and, after issuing notice to the petitioners herein, directed the parties to file affidavits and documents to substantiate their respective claims. 4. It appears that the petitioners herein filed written statement/objections to the application, wherein they claimed that Mst. Khatija, predecessor-in-interest of the respondents, has never been in possession of the property in question and as a matter of fact, the original allottee, the maternal uncle of mother of the petitioners, had put them into possession of the said property during his life time. According to the petitioners, Mst. Khatija, despite being sister of the original alltotee, did not take his care but it was petitioner No.1 who took care of the deceased allottee. According to the petitioners, Mst. Khatija, despite being sister of the original alltotee, did not take his care but it was petitioner No.1 who took care of the deceased allottee. It was further contended that in the year 1994, the original allottee handed over possession of the property in question to petitioner No.1 whereafter petitioner No.3, with the consent of petitioner No.1, started to reside in the said residential house along with his family for about five years. It was further claimed that petitioner No.3 constructed his own residential house and shifted there, whereafter the property in question remained in peaceful possession of petitioner No.1 even after the death of the original allottee on 05.04.2006. It is claimed that petitioner No.1, who is running the business of electronic and electric goods, has stored the items relating to his business in the said house and this was never objected to by the predecessor-in-interest of the respondents. In short, the petitioners claim that Mst. Khatija, the sister of the deceased allottee, has never come into possession of the property in question and right from the year 1994, the petitioners have been in possession of the said property with the consent of the original allottee on the basis of an oral will executed by the original alltotee in their favour. 5. In their pleadings before the learned trial Magistrate, reference has been made by the parties to legal proceedings that have taken place between them before different Revenue Courts. It appears that after the death of the original allottee, concerned Tehsildar has, vide mutation order No.978, dt.26.06.2006, directed that death of the original allottee be recorded in the revenue record and the name of Mst. Khatija, the sister of the deceased allottee be reflected. It appears that the aforesaid order has been a subject matter of litigation between the parties before higher fora and ultimately it has landed before the Court of Financial Commissioner (Revenue), J&K, Srinagar, which vide its order dated 18.09.2013 upheld the order of mutation passed by the Tehsildar vide mutation order No.978 dated 26.06.2006. It appears that the aforesaid order has been a subject matter of litigation between the parties before higher fora and ultimately it has landed before the Court of Financial Commissioner (Revenue), J&K, Srinagar, which vide its order dated 18.09.2013 upheld the order of mutation passed by the Tehsildar vide mutation order No.978 dated 26.06.2006. While doing so, the Financial Commissioner (Revenue) has observed that the Tehsildar concerned has rightly held that the subject matter pertains to Government/Housing Board and as such no order can be passed in respect of the same, meaning thereby that the revenue authorities have not given any finding as regards the entitlement of either of the parties to possess or hold the property in question. 6. It appears that pursuant to preliminary order dated 28.03.2012 passed by the learned trial Magistrate, the parties filed affidavits of their witnesses and also placed on record documents in support of their respective claims. The learned trial Magistrate, after hearing the parties and after referring to the affidavits filed by the parties as also the documents placed on record by the parties, observed that on 17.02.2012, a scuffle had taken place between the parties with regard to possession of the subject matter but on the basis of the affidavits and the documents on record, he is not in a position to decide as to which of the parties was in possession of the property in question on the relevant date or which of the parties was dispossessed from the property in question within two months prior to the aforesaid date. Accordingly the learned trial Magistrate forwarded the record of the proceedings to the Civil Court to decide the question as to whether any and which of the parties was in possession of the property in dispute on the date of the preliminary order passed by the said Court i.e. on 28.03.2012. The learned trial Magistrate further directed that till such time Civil Court gives its finding, the property in dispute be attached and a direction was issued to SHO, P/S, Sopore, directing him to attach the subject matter in dispute by taking and keeping possession thereof and to hold the same under attachment until further orders. 7. The aforesaid order came to be challenged by the petitioners by way of a revision petition before the Principal Sessions Judge, Baramulla . 7. The aforesaid order came to be challenged by the petitioners by way of a revision petition before the Principal Sessions Judge, Baramulla . The learned Revisional Court vide impugned order dated 01.10.2013, observed that no case for exercise of revisional jurisdiction is made out and, as such, the revision petition was dismissed. 8. The petitioners have called into question the preliminary order passed by the learned trial Magistrate on 28.03.2012 as also order dated 15.06.2012 passed by the said court whereby the matter has been referred to the civil court and an order of attachment has been passed in respect of the property in question. The petitioners have also challenged the order passed by the Revisional Court on 01.10.2013 whereby order dated 15.06.2012 passed by the learned trial Magistrate has been upheld. 9. The petitioners have challenged the impugned orders on the ground that the preliminary order passed by the learned Magistrate is not in accordance with law, inasmuch as the learned Magistrate has not framed the same in accordance with the provisions contained in Section 145(1) of the J&K Cr.P.C as the said order is non-speaking and cryptic in nature. It is further contended that the impugned order dated 15.06.2012 passed by learned trial Magistrate is not legally sustainable because the learned Magistrate has not perused and considered the affidavits and the documents placed on record by the parties but has simply referred to the same without their critical examination. Thus, according to the petitioners, the conclusion arrived at by the learned Magistrate vide the aforesaid order does not have any basis and the same is bereft of any reasons. It has also been contended that the predecessor-in-interest of the respondents had simultaneously, on the same date on which she had invoked the jurisdiction of the learned trial Magistrate under Section 145 of the Cr.P.C., filed a civil suit in respect of the same property claiming, inter alia, the relief of mandatory injunction of eviction against the petitioners. On this ground, it is urged that when the civil court was already seized of the matter, the proceedings under Section 145 of the Cr.P.C. could not have been initiated and continued. On this ground, it is urged that when the civil court was already seized of the matter, the proceedings under Section 145 of the Cr.P.C. could not have been initiated and continued. It has also been contended that the learned Revisional Court did not take into account this aspect of the matter while passing the impugned order and, in fact, the learned Revisional Court refused to go into the merits of the contentions raised by the petitioners on the ground that the impugned order passed by the learned trial Magistrate is interlocutory in nature, which, according to the petitioners, is not in accordance with law. 10. The respondents have defended the impugned orders on the grounds that the petitioners are rank strangers to the property in question. It has been contended that the petitioners cannot invoke inherent jurisdiction of this Court under Section 561-A of the Jammu and Kashmir Cr.P.C. after having failed both before the trial Magistrate and before the Revisional Court. It is contended that a petition under Section 561-A of J&K Cr.P.C. under the garb of a second revision is not maintainable. The respondents would contend that even when a civil suit is pending between the parties in respect of the same subject matter, the learned Magistrate was not debarred from proceeding under Section 145 of the Cr.P.C. because the Civil Court has not passed any interim order in the suit. 11. I have heard learned counsel for the parties and perused the material on record. 12. The first contention that has been raised by the petitioners is that the preliminary order dated 28.03.2012 does not satisfy the requirements of Section 145(1) of the Cr. P.C, inasmuch as the same is cryptic in nature. In support of this contention, learned counsel for the petitioners has relied upon the judgment of this Court in the case of Ab. Ahad Mir v. Syed, 1990 KLJ 706, in which it has been held that it is Section 145(1) of the Cr. P. C which gives jurisdiction to the Magistrate to proceed and to decide the matter under Section 145 of the Cr. P.C. The Court has further held that the defect in preliminary order renders the subsequent proceedings null and void. 13. There can be no quarrel with the aforesaid proposition of law. P. C which gives jurisdiction to the Magistrate to proceed and to decide the matter under Section 145 of the Cr. P.C. The Court has further held that the defect in preliminary order renders the subsequent proceedings null and void. 13. There can be no quarrel with the aforesaid proposition of law. There can also be no dispute to the fact that the impugned preliminary order passed by the learned trial Magistrate in the instant case is not happily worded and, strictly speaking, it does not satisfy the requirements of Section 145(1) of the Cr. P.C but then in the instant case, pursuant to the passing of the impugned preliminary order, the petitioners have appeared before the trial Magistrate and filed their objections as well as evidence by way of affidavits. They have also placed documents on record. The record shows that there has been no confusion in the mind of the petitioners as regards the subject matter and the nature of dispute. So, it can safely be stated that the defect in making the preliminary order in the instant case has not resulted into any prejudice to the petitioners. 14. This Court in the case of Ghulam Mohammad vs. Hari Chand, 1978 CriLJ 299, has while dealing with a similar question, observed as under:— “Next, the learned counsel for the petitioner herein drew the attention of the court to the preliminary order drawn on 31-8-1974 by the trial Magistrate and severely criticised the same inasmuch as the order in question did not specifically mention or convey the satisfaction of the Magistrate with regard to the existence of the dispute on spot and likelihood of the breach of peace thereon. His contention was that failure on the part of the Magistrate to record his satisfaction with regard to these two important aspects of the case was fatal and has vitiated the entire proceedings. A perusal of the preliminary order would obviously show that the same was defective in several respects including the one mentioned by the learned counsel that the Magistrate has failed to record in so many words his satisfaction with regard to the existence of a dispute and because of it the likelihood of the breach of peace on the spot. A perusal of the preliminary order would obviously show that the same was defective in several respects including the one mentioned by the learned counsel that the Magistrate has failed to record in so many words his satisfaction with regard to the existence of a dispute and because of it the likelihood of the breach of peace on the spot. The order is couched in words rather strange in which after reproducing the allegations of the applicant that he was in fear of likelihood of breach of peace on the spot because of the dispute, the learned Magistrate was pleased to record only “that the court is satisfied”. The Magistrate should have stated with regard to what he was satisfied. In plain words the requirement of law was that he should have clearly stated that he was satisfied with regard to the existence of the dispute on the spot and also that there was likelihood of the breach of peace. Unfortunately, however, the Magistrate has failed to comply with the requirement of law in full but admitting that this infirmity did exist in the order it would not ipso facto lead to the quashing of the proceedings on this ground alone in the absence of proof of any prejudice having been resulted as a consequence thereof to the petitioner herein. No injustice or prejudice appears to have; been caused to the petitioner herein as he has taken part in the proceedings after the passing of the preliminary order, submitted his objections and also produced evidence in the form of affidavits and other documents. The petitioner herein, has all along been aware of the nature of the case and has taken part in the proceedings in full knowledge of it. The fact that an irregularity has been committed in the matter of procedure unaccompanied by any suggestion of any probable failure of justice having been occasioned thereby is not sufficient to invalidate the proceedings (See AIR 1947 PC 44 ). It is now settled law that the preliminary order though not complete and legal in all respects would not be sufficient to vitiate the proceedings unless there is proof of any prejudice having been caused. It is now settled law that the preliminary order though not complete and legal in all respects would not be sufficient to vitiate the proceedings unless there is proof of any prejudice having been caused. The preliminary order in this case of course was not in strict compliance with the provisions of Clause 1 of Section 145 Cr.PC but this fact alone would not be sufficient to vitiate the entire proceedings in the case. This is however not to say that in a given case the finding of the Magistrate with regard to his satisfaction about the existence of a dispute and likelihood of the breach of peace on the spot should not be unambiguous and clear, but as has been stated above on the facts of the instant case it appears that no injustice has been caused on account of the failure of the Magistrate to record his satisfaction in clear and unambiguous terms. A few other defects have been found in the preliminary order but none of these goes to the root of the case and no injustice has occasioned thereby. The contention of the learned counsel for the petitioner herein that because of the defective preliminary order the entire proceedings have been vitiated cannot on the facts of the case be entertained and is therefore, rejected. 15. In view of the enunciation of law on the subject as expounded in the afore quoted passage, it is clear that if no prejudice is caused to the parties due to defective frame of the preliminary order, the subsequent proceedings cannot be said to have been vitiated. As already noted, in the instant case the petitioners have fully participated in the proceedings and while projecting their stand before the learned trial Magistrate, there has neither been any confusion in their mind nor any prejudice has been caused to them. It is, therefore, not open to the petitioners to turn around, after having consciously participated in the proceedings without raising any objection in this regard even before the Revisional Court, and challenge the preliminary order by way of the instant proceedings. The contention of the petitioners, therefore, deserves to be rejected. 16. It is, therefore, not open to the petitioners to turn around, after having consciously participated in the proceedings without raising any objection in this regard even before the Revisional Court, and challenge the preliminary order by way of the instant proceedings. The contention of the petitioners, therefore, deserves to be rejected. 16. It has been next contended by learned counsel for the petitioners that the learned Revisional Court has not gone into merits of the case and simply rejected the revision petition on the ground that the impugned order passed by the learned trial Magistrate being interlocutory in nature is not revisable. 17. A perusal of the impugned order passed by the learned Revisional Court reveals that the said Court has, after relying upon the ratio laid down by this Court in the case of Brij Lal Chakoo vs. Ab. Ahad Nishati and Ors., 1980 Cri.LJ 89, observed that the impugned order dated 15.06.2012 is interlocutory in nature and the same is not amenable to revisional jurisdiction. However, in spite of this, the learned Revisional Court has also dealt with the merits of the case and observed that even if the aforesaid order is treated to be revisable in nature, still then the discretion exercised by the trial Magistrate cannot be said to be either mechanical or arbitrary in nature leading to miscarriage of justice. So, in the instant case the learned Revisional Court has also dealt with the merits of the impugned order passed by the trial Magistrate though the Court has observed that the said order is interlocutory in nature. Thus the contention of the petitioners that the Revisional Court has not dealt with the merits of the case is misconceived. 18. As already noted, it has been contended by learned counsel for the respondents that the instant petition under Section 561-A of the J&K Cr. P. C is not maintainable as the same is in effect a second revision petition in the guise of a petition invoking inherent jurisdiction of this Court, which is impermissible in law. In this regard, learned counsel for the respondents has relied upon the judgments of the Supreme Court in the cases of Amar Nath and Ors. Vs. State of Haryana and anr. AIR 1977 SC 2185 and Central Bureau of Investigation vs. Ravi Shankar Srivastava, AIR 2006 SC 2872 . 19. In this regard, learned counsel for the respondents has relied upon the judgments of the Supreme Court in the cases of Amar Nath and Ors. Vs. State of Haryana and anr. AIR 1977 SC 2185 and Central Bureau of Investigation vs. Ravi Shankar Srivastava, AIR 2006 SC 2872 . 19. There can be no dispute as regards the legal position that inherent powers of the High Court under Section 482 of the Cr.P.C. cannot be invoked so as to circumvent the legal bar to the filing of a second revision petition as engrafted in Section 397(3) of the Cr.P. C. It is also a settled proposition of law that inherent powers under Section 482 of the Cr. P. C should be exercised sparingly with great circumspection in order to prevent the abuse of process of the court and to secure the ends of justice. 20. The Supreme Court in the case of Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370 , has, while considering the question whether an application under Section 482 of the Cr. P. C can be dismissed only because the revision petition has been dismissed by Sessions Court, observed as under:— “Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Rai [ (2003) 6 SCC 675 ]. Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397(2) of the Code, the inherent power of the Court has been held to be available. The inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of.” 21. The inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of.” 21. Similarly, the Supreme Court in the case of Shakuntala Devi & Ors v. Chamru Mahto & Anr., (2009) 3 SCC 310 , declined to accept the contention that there was a complete bar under Section 397(3) of the Code debarring the High Court from entertaining an application under Section 482 of the Cr. P. C. 22. This Court in Jamia Auqaf Committee Kangan vs. SHO, P/S Kangan & Anr., 2008(2) JK [HC] 258, while considering a similar question, relied upon the ratio laid down by the Supreme Court in the case of Krishnan and Anr vs. Krishnaveni and Anr, (1997) 4 SCC 241 , and observed as under:— “Plain language of Section 561-A Cr.P.C ordain that bar created by Section 435(3) will not divest the court of its inherent power. The opening words “Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court” suggest that applicability of Section 435(3) Cr.P.C is excluded. Therefore, inherent power of the court is saved, same is available, whether it can be exercised, is a different issue, dependent upon the facts and circumstances of each case, presenting question of abuse of process of law or question of securing interests of justice.” 23. From the foregoing enunciation of law on the subject, it is clear that jurisdiction of the High Court under Section 482 of the Cr. P. C is of wide amplitude and it cannot be excluded by the provisions contained in Section 435(3) of the J&K Cr. P. C which corresponds to Section 397(3) of the Central Cr. P. C. Thus merely because the revision petition in the instant case has been rejected by the learned Revisional Court, this Court is not debarred from entertaining a petition under Section 482 of the Cr. P. C against the impugned order passed by the learned Magistrate if it finds that there has been miscarriage of justice or that ends of Justice would be secured by interfering in the order passed by the learned trial Magistrate. It would all depend upon the facts and circumstances of the case. 24. P. C against the impugned order passed by the learned Magistrate if it finds that there has been miscarriage of justice or that ends of Justice would be secured by interfering in the order passed by the learned trial Magistrate. It would all depend upon the facts and circumstances of the case. 24. Having held that this Court is not debarred from entertaining the instant petition filed by the petitioners against the impugned orders passed by the learned Magistrate in spite of the revision petition against the said orders having been dismissed by the learned Revisional Court, let us now proceed to analyze the impugned order dated 15.06.2012 passed by the learned trial Magistrate. A perusal of the aforesaid order reveals that the learned Magistrate has, while passing the said order, referred to the affidavits filed by the parties and the documents placed on record by them in support of their respective contentions. The learned Magistrate has not taken trouble to refer to any portion of the depositions made by deponents nor has he referred to any extract of the documents which he has taken into consideration. The learned Magistrate has simply, in an omnibus manner, referred to the documents and affidavits of the parties and concluded that he is not in a position to make out as to who was in possession of the disputed property on the relevant date. Before discarding the affidavits and the documents referred to and relied upon by the parties, it was incumbent upon the learned Magistrate to give his reasons for not relying upon the claims and counter claims of the parties. A Magistrate cannot just brush aside the material placed on record by the parties by simply stating that from a perusal of the same he is not able to make out as to who was in possession of the property. 25. Section 145 (4) of the Cr. P. C casts a duty upon the Magistrate to critically examine the statements, documents and affidavits filed by the parties while making an inquiry under the said provision. In order to understand the nature of duty cast upon a Magistrate while conducting the inquiry, it would be profitable to refer to the provision contained in Section 145(4) of the Cr. P. C, which reads as under:— 145. Procedure where dispute concerning land, etc. is likely to cause breach of peace 1. In order to understand the nature of duty cast upon a Magistrate while conducting the inquiry, it would be profitable to refer to the provision contained in Section 145(4) of the Cr. P. C, which reads as under:— 145. Procedure where dispute concerning land, etc. is likely to cause breach of peace 1. xxx xxx xxx xxx 2. xxx xxx xxx xxx 3. xxx xxx xxx xxx (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 may 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 anytime attach the subject of dispute, pending his decision under this section. From a perusal of the aforesaid provision, it is clear that a Magistrate has to peruse the statements, documents and affidavits put in by the parties and conclude the enquiry by deciding the question whether any and which of the parties was at the date of the order in possession of the said subject. The Magistrate also has an option of summoning and examining any person whose affidavit has been placed on record. 26. The expression “peruse” appearing in Section 145 (4) of the Code of Criminal Procedure has been subject matter of interpretation before Patna High Court in the case of Sohan Mushar and Others vs. Kailash Singh and Others, AIR 1962 Pat. 249 . The Court has interpreted the expression “peruse” appearing in Section 145(4) of the Cr. 26. The expression “peruse” appearing in Section 145 (4) of the Code of Criminal Procedure has been subject matter of interpretation before Patna High Court in the case of Sohan Mushar and Others vs. Kailash Singh and Others, AIR 1962 Pat. 249 . The Court has interpreted the expression “peruse” appearing in Section 145(4) of the Cr. P. C in the following manner:— 8. The word ‘peruse’ has not been defined in the Code itself. Its ordinary dictionary meaning, therefore, may be taken into consideration for ascertaining the true scope and effect of the word ‘peruse’ occurring in sub-section (4) of Section 145 of the Code. 9. The word ‘peruse,’ according to the Chambers’ Twentieth Century Dictionary, Revised 1959 Edition, means: “(Shak) to pass in scrutiny one by one or piece by piece: to examine in detail: to revise: to read attentively or critically: (loosely), to read”. The word ‘peruse,’ used in sub-section (4) of Section 145, therefore, connotes “to examine in detail.” The proper meaning to give to the word ‘peruse’, as such, would be “to go through critically”, that is, read attentively and examine critically in detail, one by one.” This appears to me to be the correct meaning and the true scope land effect of sub-section (4) of Section 145, and the real test to be applied in judging whether a Magistrate has considered the affidavits filed, as required by sub- section (4) of Section 145. 10. It has, however, to be borne in mind that for lack of cross-examination of the deponents who have sworn the affidavits, the Magistrate cannot be expected to give detailed reasons for accepting or rejecting the affidavits, but he should make it apparent in his order that he has applied his mind to them. If, however, there exists one ground for accepting or rejecting an affidavit, and that ground equally holds good in case of other affidavits also, the certainly the Magistrate can, in such a case, give that one ground for accepting or rejecting the affidavits of more than one person, and, he can take them all together. 11. If, therefore, the Magistrate passes an order under Section 145 without perusing the affidavits put in by the aggrieved party, such an order ex-facie will be held to be improper, in that, the Magistrate has not in such a case, complied with the mandatory provisions of Section 145(4) of the Code. 11. If, therefore, the Magistrate passes an order under Section 145 without perusing the affidavits put in by the aggrieved party, such an order ex-facie will be held to be improper, in that, the Magistrate has not in such a case, complied with the mandatory provisions of Section 145(4) of the Code. 12. The object in view, no doubt, in amending Section 145, was the expeditious disposal of cases under Sec. 145, and, for that reason now the amended sub-section (4) of Section 145 provided that the Magistrate shall ‘conclude the enquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him. 13. But this does not mean, however, that the Magistrate should pass an order under Section 145, without considering the affidavits, if any. 27. This Court has, in the case of Gh. Mohd. vs. Hari Chand, 1977 KLJ 428, laid down the guidelines regarding the manner in which a Magistrate is expected to consider the affidavits in proceedings under S.145 Cr. P. C. Para 9 of the judgment is relevant to the context and the same is reproduced as under:— 9. Now let me take up the various affidavits produced by the parties for consideration. The trial Magistrate as has been noticed above was right in rejecting the affidavits of the petitioner herein on the ground that the same were not properly sworn before the Magistrate having jurisdiction in the case. Strangely however he has failed to apply his mind to the affidavits submitted in the case by the other party and has not as required of him critically examined the same. In the impugned order he has merely mentioned that the applicant before him had produced so many affidavits in support of his case. He has failed to discuss the affidavits one by one and consequently his findings are not based on such discussions. “Under Sub-section (4) of Section 145 Cr. Pr. Code a duty has been cast on the Magistrate to ‘per-sue’ the documents, affidavits, and the statements of the parties produced before him with regard to the right to possess the subject matter of dispute. “Under Sub-section (4) of Section 145 Cr. Pr. Code a duty has been cast on the Magistrate to ‘per-sue’ the documents, affidavits, and the statements of the parties produced before him with regard to the right to possess the subject matter of dispute. After a perusal of such affidavits and documents the Magistrate is required to decide, if possible, the question whether any and which of the parties was on the date of the order in such possession of the subject matter of the dispute. This is a mandatory provision and failure to comply with it and failure to peruse the affidavits and the documents etc. would vitiate the findings of the Magistrate and consequently vitiate the entire proceedings. The word ‘peruse’ used in Subsection (4) of Section 145 Cr. Pr. Code means ‘to go through critically’ i.e. “to read attentively and examine critically in detail the documents and affidavits one by one”. (See AIR 1962 Patna 253). It is incumbent upon the Magistrate that he should peruse the documents and affidavits filed by the parties and also other statements recorded in the case. It is imperative that the order of the Magistrate must show that he has considered the affidavits i.e. has applied his judicial mind to the assertions contained therein.” (See AIR 1965 Pat. 104 ). In 1967 Allahabad Cri. R. 100 and in AIR 1967 Manipur 203 it has been held that the failure to consider the affidavits is an illegality which vitiates the order of the Magistrate. The same view has been expressed in AIR 1965 Tripura 43. 28. Again in the case of Karnail Singh vs. Shyam Lal & Ors., 1999 SLJ 500, while discussing a similar issue, a Single Judge of this court has observed as under:— “7. While adjudicating upon an application filed under Section 145 Cr. PC. Magistrate below exercises adjudicatory powers vested in him under law. True it is that he need not discuss the evidence threadbare produced by the parties in proceedings under Section 145 Cr. P.C. But that does not mean that he need not make a reference so as to support the conclusions he may arrive on examination of such evidence. PC. Magistrate below exercises adjudicatory powers vested in him under law. True it is that he need not discuss the evidence threadbare produced by the parties in proceedings under Section 145 Cr. P.C. But that does not mean that he need not make a reference so as to support the conclusions he may arrive on examination of such evidence. In the instant case when a reference is made to the impugned order, it is evident that except for making a reference to the affidavits having been filed before him, there is nothing said even in a summary manner as to what is stated in each one of such affidavits and for what reasons he is attaching any weight to those while accepting/ rejecting such affidavits. As such it cannot be said that the evidence has been discussed briefly by the trial Magistrate. 29. From a perusal of the aforesaid enunciation of law on the subject, it is clear that while considering the affidavits during the course of making inquiry under Section 145 (4) of the Cr. P. C, it is incumbent upon a Magistrate to refer to the relevant portions of the affidavits filed by the parties in support of their respective claims and record his reasons for accepting or rejecting the said affidavits. The Magistrate has to form his opinion after critically examining the affidavits produced by the parties. Merely stating that he has not been able to make out as to which of the parties was in possession of the property in question on the relevant date, without critically examining the affidavits on record and without recording any reasons for said conclusion, is not what was required to be done by the trial Magistrate in terms of Section 145(2) of the Cr. P. C. 30. Even if it is assumed that it was not possible for the trial Magistrate to come to any conclusion as regards the factum of possession on the basis of the affidavits and the documents put in by the parties, it was open to him to examine the deponents so as to have clarity on the issue of possession. Without exploring this option and without examining the material on record in detail, the impugned order dated 15.06.2012 has been passed by the learned trial Magistrate, which is bereft of any reasons, much less plausible reasons. The same, as such, is unsustainable in law. 31. Without exploring this option and without examining the material on record in detail, the impugned order dated 15.06.2012 has been passed by the learned trial Magistrate, which is bereft of any reasons, much less plausible reasons. The same, as such, is unsustainable in law. 31. There is yet another aspect of the matter which has not been discussed or taken into consideration either by the learned trial Magistrate or by the learned Revisional Court. Admittedly, the predecessor-in-interest of the respondents has filed a civil suit, inter alia, claiming the relief of mandatory injunction of ejectment of the petitioners from the property in question and the said suit was filed on the same very day before the civil court on which date she had filed the application under Section 145 of the Cr. P. C before the learned trial Magistrate. It has been vehemently contended by learned counsel for the respondents that mere filing of a civil suit cannot operate as a bar to the continuance of the proceedings under Section 145 of the Cr. P. C, particularly when the civil court has not passed any interim direction in the said suit. In this regard, the learned counsel for respondents has relied upon the following judgments:— (I) Haji Habib ullah Shah & ors. Vs. SHO & Ors. 1985 KLJ 185; (II) Rattan Lal vs. Kundan Lal Gupta & anr. (Criminal Reference No.32/1991 decided on November 2, 1992) (III) Ghani Shamdass Anand and anr. Vs. Shakti Prakash and others, 1987 KLJ352; (IV) Ghulam Mohi-ud-Din vs. Gani Joo, 1988 KLJ 18; (V) Mst. Mehtabi vs. Aziz Mir & Ors. 1988 KLJ 152 ; (VI) Sham Lal vs. Kanta Devi, 1991 KLJ 456 ; (VII) Mst. Mukhti v. Gani Doom and others, SLJ 1997 123; (VIII) Ahad Dar vs. Maqbool Dar and Ors. 2001 KLJ 370; (IX) Abdul Khaliq Khan v. Ghulam Mohammad Sheikh & Ors. 2002 (I) SLJ 286; (X) Aijaz Ahmad Fazil & Ors. V. Arshid Ahmad Maqdoomi & others, 2002 KLJ 622 ; (XI) Sanjeev Chowdhary vs. Inderjeet Kapoor & anr. 2014 (I) SLJ HC 299; 32. It is true that mere filing of a civil suit cannot operate as a stay of the proceedings under Section 145 of the Cr. P. C because these proceeding are preventive in nature but the matter will be different if prior to the initiation of the proceedings under Section 145 of the Cr. 2014 (I) SLJ HC 299; 32. It is true that mere filing of a civil suit cannot operate as a stay of the proceedings under Section 145 of the Cr. P. C because these proceeding are preventive in nature but the matter will be different if prior to the initiation of the proceedings under Section 145 of the Cr. P. C, a civil suit has been filed by one of the parties regarding the subject matter of the case. In the instant case, admittedly, predecessor- in-interest of the respondents has filed a civil suit against the petitioners in respect of the property in question. It is true that no injunction order or an order of appointment of receiver has been passed in the said suit but then the Supreme Court in the case of Amresh Tiwari vs. Lalta Prasad Dubey, (2000) 4 SCC 440 , has clearly observed that when the question of possession is being examined by the civil court and the parties are in a position to approach the civil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings under Section 145 of the Cr. P. C should not continue. In this regard it would be apt to refer to the following excerpts of the aforesaid judgment:— “12. The question then is whether there is any infirmity in the order of the SDM discontinuing the proceedings under Section 145 of the Criminal Procedure Code. The law on this subject-matter has been settled by the decision of this Court in the case of Ram Sumer Puri Mahant v. State of U.P. [ (1985) 1 SCC 427 : 1985 SCC (Cri) 98] In this case it has been held as follows:— “When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us. Counsel for Respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue....” 13. We are unable to accept the submission that the principles laid down in Ram Sumer case [ (1985) 1 SCC 427 : 1985 SCC (Cri) 98] would only apply if the civil court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer case [ (1985) 1 SCC 427 : 1985 SCC (Cri) 98] is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil court and parties are in a position to approach the civil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.” 33. Again, the Supreme Court in the case of Ashok Kumar vs. State of Uttrakhand and Ors, (2013) 3 SCC 366 , while examining the legality of attachment order made by the Magistrate under Section146(1) of Cr. P. C, in a case where a civil suit was pending between the parties observed as under:— 12. We also notice that the respondent herein has filed a civil suit for injunction before the Civil Judge (Junior Division), Haridwar on 2-9-2009 and an application for interim injunction is also pending, on which the civil court has issued only a notice. P. C, in a case where a civil suit was pending between the parties observed as under:— 12. We also notice that the respondent herein has filed a civil suit for injunction before the Civil Judge (Junior Division), Haridwar on 2-9-2009 and an application for interim injunction is also pending, on which the civil court has issued only a notice. An Amin report was called for and the Amin submitted his report on 21-11- 2009. The civil suit was filed prior in point of time, it is for the civil court to decide as to who was in possession on the date of the filing of the suit. In any view, there is nothing to show that there was an emergency so as to invoke the powers under Section 146(1) to attach the property, specially, when the civil court is seized of the matter. Under such circumstances, we are inclined to set aside the order passed by the SDM dated 25-11- 2009 and the order of the High Court dated 27-3-2012. 34. From the aforesaid enunciation of law on the subject, it is clear that it is not only when an interim order of injunction or appointment of receiver has been passed by the civil court that proceedings under Section 145 of the Cr. P. C would not lie but even in a case where civil suit is pending and the parties are in a position to approach the civil court for interim relief of aforesaid nature, the proceedings under Section 145 of the Cr. P. C would not lie, particularly when the civil suit has been filed simultaneously or prior to the initiation of the proceedings under Section 145 of the Cr. P. C. The ratio laid down in the cases relied upon by learned counsel for the respondents has no applicability to the facts of the instant case because in all those cases civil suits were filed after the initiation of the proceedings under Section 145 of the Cr. P. C and not prior to that. As already noted, in the instant case, civil proceedings and the proceedings under Section 145 of the Cr. P. C have commenced simultaneously. The parties could have easily approached the civil court for appointment of the receiver of the suit property or to seek interim injunction for protection of the subject matter of the dispute. As already noted, in the instant case, civil proceedings and the proceedings under Section 145 of the Cr. P. C have commenced simultaneously. The parties could have easily approached the civil court for appointment of the receiver of the suit property or to seek interim injunction for protection of the subject matter of the dispute. The fact that the trial Magistrate did not feel the matter to be of such an emergent nature as would warrant its attachment and passed the impugned order of attachment not for the reasons of emergency but because of the reason that, after holding the inquiry, he could not decide as to which of the parties was in possession of the subject matter of the dispute, shows that it is not a case where the proceedings under Section 145 of the Cr. P. C. could have been allowed to continue in view of pendency of the civil suit. Thus, the continuance of parallel proceedings under Section 145 of the Cr. P. C is nothing but abuse of process of the court. 35. Apart from the above, the incident which has led to the filing of proceedings under Section 145 of the Cr. P. C has taken place about ten years back and the civil suit between the parties has also been pending for the last about ten years. By now the proceedings in the civil suit must have progressed substantially and having regard to the nature of dispute between the parties, it is only a civil court that would be in a position to settle the said dispute. The respondents are claiming right to possession and title to the property in question on account of their relationship with the deceased allottee whereas the petitioners claim their right on the basis of an oral will. Such a dispute can be decided only by a civil court. The issue of right to possession of the subject property and the question as to who was actually in possession of the property on the date of framing of impugned preliminary order or two months prior to that, after a passage of more than ten years when much water has flown in the river Jhelum during all these years, may not be of much significance and relevance to the ultimate settlement of the dispute. Therefore, continuance of proceedings under Section 145 of the Cr. Therefore, continuance of proceedings under Section 145 of the Cr. P. C and decision of the civil court as regards the possession of the subject property in pursuance of the impugned order dated 15.06.2012 may be an exercise in futility so far as the settlement of the dispute between the parties is concerned. All the issues as regards the property in question arising between the parties, can be finally decided by the civil court before whom the respondents have already filed a suit more than ten years back. Thus, this is a fit case where this court should exercise its inherent powers under Section 482 of Cr. P. C. (Section 561-A of J&K Cr. P. C) to prevent the abuse of process of court and to secure the ends of justice. 36. For the foregoing reasons, the petition is allowed and the impugned order dated 15.06.2012, as upheld by the learned Revisional Court, is set aside. The parties are at liberty to approach the civil court where the suit filed by predecessor-in-interest of the respondents is pending and obtain appropriate interim order from the said court in respect of the property in question by filing an appropriate application.