ZAINA BIBI Vs. MEHRAJ-UD-DIN KAK

JUDGEMENT

(1.) RESPONDENT No. 1 filed an application under section 145 of the code of criminal procedure against respondents 2, 3 and 4 on 6th of April, 1976, The city Magistrate, Srinagar after recording the preliminary statement of the applicant and pursuing the material on the record, drew up a preliminary order and directed the parties to file affidavit etc In support of their respective claims Subsequently on 18th of May, 1976 an order of attachment was made by the Magistrate. After allowing the parties an opportunity to file affidavits and hearing the parties, the learned City Magistrate opined that he was convinced that the applicant along with the brothers and sisters was in possession of the room in dispute two months prior to the date when the preliminary order was drawn and therefore, he directed that the applicant was entitled to the possession of the said room until evicted therefrom in due course of law and non - applicants were for -bidden to cause any disturbance to such a possession. The said order was made on 19th of December 1977. Aggrieved, the non -applicant (petitioner herein filed a revision petition before the Chief Judicial Magistrate, Srinagar vide order dated 15th of May, 1978 the learned Chief Judicial Magistrate dismissed the revision petition and maintain the order of the City Magistrate.

(2.) MR . K. N. Raina, learned counsel for the petitioner, has challenged the orders of the City Magistrate and the Chief Judicial Magistrate on the following three grounds: i That since a case under section 380/454 R. P. C. was pending in a criminal court resort to proceeding under section 145 Cr, P. C. could not be had in view of the provisions of Section 522 Cr. P. C. ii That the preliminary order drawn by the City Magistrate on 6 -4 -1976 was bad in as much as the satisfaction of Sub -sec. (1 of Section 145 Cr. P. C. had not been recorded by the Magistrate before drawing up the orders; & iii That the affidavits which have been filed before the City Magistrate have defective verifications and therefore were inadmissible and could not have been taken into consideration either for the purpose of preliminary order or the final order. Besides these no challenge was made

(3.) ELABORATING on the first ground of attack, it is argued that under section 522 Cr. P. C., it was open to the court trying the criminal case to restore the possession to the party which had been dispossessed by criminal force or show of force and therefore no resort could be had to the provisions of Sec. 145 Cr P. C.