KHIZAR BHAT Vs. STATE

JUDGEMENT

(1.) THIS revision arises out of proceedings initiated under Section 145. Criminal Procedure Code by the Chief Judicial Magistrate, Srinagar in case State v. Khizar Bhat.

(2.) ON an application made by Peer Abdul Ahad Shah and on the basis of the police report that there was a dispute between Pir Abdul Ahad Shah (hereinafter called 'the first party') and Khazir Bhat and others (hereinafter called 'the second party') with regard to the possession over a plot of land No. 9-A situate at Batmalu Srinagar and that there existed great apprehension of breach of peace, the Chief Judicial Magistrate drew up the preliminary order under Section 145, Criminal Procedure Code and called upon the respective parties to out in their written statements, documents and affidavits with regard to the factum of actual possession of the disputed land. The Magistrate also thought it as a case of emergency and therefore attached the subject matter of dispute. On consideration of the respective documents and affidavits on the record the learned Magistrate came to the conclusion that it was the first party which was in possession of the disputed land on the date of the preliminary order. He. therefore, declared the first party to be entitled to possession of the disputed land unless evicted therefrom in due course of law. The Magistrate also ordered the release of the attached property in favour of the first party. Against this order the second Party went up in revision before the Session Judge Srinagar who also in his elaborate order upheld the finding of the trial Magistrate and dismissed the revision petition. The second party has now come up in further revision before this Court.

(3.) SHRI T. R. Bhasin learned Counsel for the petitioner did not deal with the factual aspect of the case relating to the finding of fact arrived at by the courts below, he has however assailed the impugned orders of the Chief Judicial Magistrate and of the learned Session Judge on various grounds. He at the initial stage of the arguments called in question the power and competence of the Sessions Judge to have himself finally disposed of the revision petition. The point which he debated in the first instance and. of course, which he did not very much press at the resumed hearing of the case was that under Section 439, Criminal Procedure Code it was incumbent upon the Sessions Judge to have made a reference to the High Court even though he was of the opinion that the revision merited dismissal. Therefore the order under revision was bad in law. That both the trial Magistrate and the first revisional court had omitted to consider the implication of the interim order of civil court relating to the maintenance of status quo with respect to the subject matter of dispute. Mere pendency of a civil suit between the parties, it is conceded, did not oust the jurisdiction of the Magistrate to proceed under Section 145, Criminal Procedure Code but nevertheless Judicial propriety demanded to give due recognition to this order. In other words, the argument is when there is a civil suit pending between the parties in regard to the same subject matter which is involved in proceedings under Section 145 of the Criminal Procedure Code then the propriety which has ripened into rule of law is that the criminal court must stay its hands and should show respect to an interim or final order passed by the civil court in the civil case. Reliance is placed on the interim order of the civil court dated 13-121969 and the contents of the notice dated 13-8-1969 meant for the first party. Reliance is also placed upon the observations made by their Lordships of Mysore and Madhya Pradesh High Courts reported in AIR 1961 Mvs 203 and It is further submitted that the learned Session Judge did not fully appreciate and record the points that were debated before him on behalf of the petitioner.