ZAHIR HASAN Vs. SUB DIVISIONAL MAGISTRATE MOWANA

JUDGEMENT

(1.) COULD the Sub-Divisional Magistrate while disposing of proceedings under section 145 Criminal Procedlure Code in conforming with decision of civil court under sub-section (1-B) of Section 146 of Criminal Procedure Code have prohibited both parties from interfering in peaceful possession as public in general had right to use Hand in dispute as graveyard is the short question that arises for consideration in this petition filed at the instance of first party.

(2.) IN consolidation proceedings plot no. 1789 was earmarked for graveyard According to the petitioner it was allotted to him in lieu of his private graveyard which had been taken for chalk road. On the contrary opposite party claims that it was allotted for use as public graveyard for the entire Sunni community. Due to this rival claim apprehension of breach of peace arose and on 14th March, 1973 preliminary order under section 145 Criminal Procedure Code was passed, attaching the land in dispute. As the Magistrate could not decide the question of possession he drew statement of case and made a reference under section 146 Criminal Procedure Code to competent civil court which was decided by the Munsif on 5th December, 1974. It was held that neither party was in exclusive possession and the land in dispute was graveyard for use of general public of Muslim community. Upon receipt of rocord the Magistrate disposed of the proceedings under section 145 in conforming with the decision of the civil court under section 146 (1-B).

(3.) PROCEEDINGS admittedly were initiated before amendment of the Code in 1974. Therefore they had to be continued and disposed of in accordance with the provisions as it stood before enforcement of the amended code. The procedure adopted by the Magistrate therefore was proper. And under unamended code, and even the amended code except that provision of reference to competent civil court has been done away with, dimension of enquiry was and is the same, namely, possession and not the right to possession. While proceeding with enquiry the Magistrate could in an appropriate case take recourse to section 147 but once reference was made under section 146 the stage to proceed under section 147 was over. Because after receipt of finding from civil court the Magistrate was left with no option except to pass order in conformity with it. In none of the decisions cited by the learned counsel proceedings under section 145 were converted under section 147 after they were referred under section 146. Moreover, the Magistrate never exercised this right. Amended Code now provides specifically for it. But before proceedings could be converted and restrain order could be passed, either under sub-section (2) of Section 147 as it existed before or under section 147 (3) after amendment, circumstances warranting exercise of that power have to be there. If right is exercisable at all times of the year then proviso puts complete embargo on the right of Magistrate to pass prohibiting order. And if the finding of Munsif is accepted that it was a public graveyard then obviously the right is exercisable at all time of year. Therefore from whatever aspect of it is considered the order passed by the Magistrate cannot be maintained.