P C KHADER Vs. P K KHADER

JUDGEMENT

(1.) This is a petition to revise the order of Sub Divisional Magistrate. Perinthalmanna in M. C. 11/87. Apprehending breach of peace, Sub-Divisional Magistrate inflated proceedings under S.145 of the Code of Criminal Procedure, in respect of property in R. S. No. 23/1 of Olavathoor amsom. Petitioner is a member of B party respondents are members of A party. There were differences between A and B parties-Mujahid and Sunni groups. Magistrate observed:

(2.) According to petitioner, dispute falls under S.147 and not under S.145. He would further contend that magistrate erred in thinking that decision of civil court was conclusive. Counsel for respondents would submit that the course adopted by the magistrate is the proper course, and that the magistrate should not conduct an inquiry when the matter was concluded by decision of the civil court.

(3.) Contention that the dispute is one under S.147 and not under S.145. cannot be accepted. Though the matrix of dispute is controversy regarding mode of worship, it ripened into a dispute regarding possession. Magistrate found that there is dispute over 'the issue of possession', and noticed that because of the dispute, Mujahid group closed the mosque Magistrate was justified in initiating proceedings under S.145 of the Code. Next question for consideration is whether the order of magistrate based on an order of civil court is justified. Referring to Azeez v. Pappu ( 1986 KLT 288 ), relied on by the magistrate, counsel for petitioner contends that magistrate need only "respect" the order of civil court. According to counsel if order of civil court is considered and appreciated, that will be 'respecting' the order of civil court. Magistrate had a duty to apply his mind to the facts of the case before him and come to a finding, says counsel. A learned Single Judge of this court observed that conclusions arrived at by the civil court will have to be "honoured and respected" by the criminal court. This should be more than an attitude. When this court said that the order of civil court will have to be respected, it meant that finding of civil court was binding.