PARSHOTAM KUMAR Vs. STATE OF J&K

JUDGEMENT

(1.) The instant petition has been filed by the petitioners for quashing the proceedings under sec. 145 Code of Criminal Procedure(for short the Code) initiated by the respondent No. 2, as also the order dtd. 7/10/2015 passed by the Judicial Magistrate 1 st Class (City Judge), Jammu (hereinafter to be referred as the trial court), by virtue of which, the shop has been attached and the SHO Police Station, Domana has been appointed as Supurdar and has been further directed to take control of the shop by putting locks over the said shop.

(2.) It is stated that the petitioner No. 1 and respondent No. 2 are legal heirs of Shanti Devi, who was the wife of respondent No. 2 and mother of petitioner No. 1. After her death they inherited her property by way of succession. The land comprising under khasra No. 106 min over which the house and the shops exits is a State land but the revenue entry is in the name of late mother of the petitioner No. 1 who was in occupation of 01 kanal of land. Initially 08 shops were constructed out of the joint family funds but subsequently two were converted into gates and six were in existence out of which, two shops were in possession of the petitioners. The sons of the petitioner No. 1 being unemployed and the property was un-partitioned, therefore, the petitioner Nos. 3 and 4 established the business of M/s Kamal Provision Store in the year, 2011 in one shop and the second shop was being used as store, but in the year, 2015, the petitioner Nos. 3 and 4 established the business of Chinese Food under the name and style of M/s Kamal Brothers which is duly registered with the Labour Department.

(3.) The petitioner No. 1 made request for partitioning the said property and as the request of petitioner No. 1 was not acceded to, so the petitioner No. 1 was constrained to file a civil suit for partition of the land and the house that is pending disposal before the court of 3rd Additional Munsiff, Jammu(hereinafter to be referred as the trial court) and order of status quo was passed by the learned trial court on 4/9/2015. It is further stated that the petitioner Nos. 3 and 4 who were unemployed having no source of income, in order to earn their livelihood after getting requisite permission from the Municipal Cooperation, established the business of Provision Store and Fast Food items under the name and style of M/s Kamal Provision Store and Food Point in both the shops. The said business concern was registered on 30/4/2011 and thereafter the Food Point in the same name was registered in the year, 2015. It is further stated that as the civil suit was pending before the trial court, the respondent No. 2 in order to dispossess the petitioners from the shop adopted a unique method by misusing the provision of law, filed a criminal complaint for offence under Sec. 457, 380, 147 and 506 RPC before the court of learned Chief Judicial Magistrate, Jammu and the said complaint was forwarded to the Incharge Police Post, Chinnore for registration of the FIR and pursuant to the court direction, the Police registered FIR. It is further stated that the respondent No. 2 in order to dispossess the petitioners from the shop filed an application under sec. 145 of the Code on the basis of false and frivolous grounds alleging therein that the possession of the shop has been taken over forcibly. It is further stated that the learned Magistrate without appreciating the procedure laid down under sec. 145 of the Code, passed the preliminary order and attached the shop thereby directing the respondent No. 1 to take control of the shop by putting locks over the said shop and keep the keys within himself.