AKSAR-UL-TAIDAD AHAL TASHIAN Vs. RASOOL DAR

JUDGEMENT

(1.) THIS is a reference by the learned Additional Sessions Judge, Srinagar, recommending that the order of the City Munsiff, Judicial Magistrate 1st Class, Srinagar dated 15 -1 -1970 directing stay of proceedings under section 145 Cr, P. C. till the decision of a Civil suit pending between the parties he quashed.

(2.) AKSAR -ul -Taidad Ahal Tashian, a Shia Association of Kashmir, is divided into two groups both of whom claim to have right and title to and to be in the control and management of an Imambara situate in village Balahama. These rival claims became the subject of a civil suit in the Court of Sub -Judge, (A. D. M.) Srinagar, which was eventually compromised by the parties as a result of which a Managing Committee was consti ­tuted which included on it members from both groups. Later on one of the groups chose to file a fresh suit in the Court of Sub -Judge (A.D.M.) Srinagar, by which the compromise was assailed as one tainted with misrepresentation. In this suit the plaintiffs also obtained an ex -parte temporary injunction against the other side subject, of course, to their objections, if any. The other side made an application under section 145 Cr. P. C. which came to be heard by the City Munsiff. Judicial Magistrate 1st Class Srinagar, who, feeling satisfied that a dispute involving breach of the peace existed with regard to the possession of the Imambara, as aforesaid, drew up a preliminary order in terms of sub section (1) of section 145 Cr. P. C. on 31 -1 -1968 and called upon the parties to put in statements of their claims as regards the fact of actual possession and also to file such documents and affidavits as they proposed to rely upon in support of such claims. Both the parties filed various documents and affidavits in proof and disproof of each others case but the learned Magistrate eventually by his order dated 15 -1 -1970 stayed the proceedings on the ground that a civil suit was pending between the parties in which an order of temporary injunction had also been made in favour of one of them. On revision the learned Additional Sessions Judge, Srinagar, held that this could not be a valid ground for dropping the proceedings and that the order made by the trial Magistrate was. therefore, illegal and recommended that it may be set aside by this Court.

(3.) THE conditions for the applicability of the provisions of section 145 Cr. P. C. are that a dispute exists concerning any land or water or the boundaries thereof and that such dispute is likely to cause a breach of the peace. Cases are conceivable in which the property, as aforesaid, is or has been the subject of a civil suit between the parties. In such a case the Magistrate should proceed with care and caution. He should ascertain full facts from the party invoking his aid and then consider if there is a real apprehension of breach of peace and. if so, whether the same can be prevented under section 107 Cr. P. C. or under section 145 Cr. P. C. In any case in which he decides to proceed under section 145 Cr. P. C. he is required to pass a preliminary order under sub -section (1) and afterwards make an enquiry under sub -section (4) of the said section. Upon such enquiry he is required to decide the question whether any and which of the parties was at the date of the order before -mentioned or at any time within two months next before the date of such order in possession of the subject of dispute and declare such party in possession thereof. The only circumstances under which the proceedings may be dropped half -way is that given in sub ­section (5) which reads: - "Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub -section (1) shall be final." The language of the section, therefore, clearly suggests that the proceedings initiated once thereunder can be stayed under certain specified circumstances not including the mere pendency of a civil suit between the parties. It makes to difference that such suit is instituted after the drawing up of the preliminary order.