PIR GHULAM SHAH Vs. PIR MEERAJUDDIN

JUDGEMENT

(1.) ONE Meraj-ud-Din put in an application Under Sections 145/107 of the Criminal P. C. against two persons, Pir Maqbool Shah and Pir Ghulam Shah, with regard to some land along with trees and walls and stones and bricks on this land marked as A, B, C and D in the site plan attached, without specifying the place where this property" was situate. He further stated that the fathers of the applicant and the non-applicants the real brothers and all the property of the three brothers was jointly owned and possessed. While the applicant was a minor, his father died, and out of this property jointly owned and jointly possessed the non-applicants were removing certain trees and stones and getting the timber which was on the plot of land. This, according to the applicant, was likely to endanger public peace. He praved that proceedings Under Sections 145/107, Criminal P. C. be taken against the non-applicants.

(2.) THIS application was heard by the City Magistrate Srinagar in whose Court the statements of the applicant and one witness were recorded presumably by some clerk of the Court. Along with this application Under Sections 145/107 of the Criminal P. C, the applicant presented an application for attachment of the property, Tae application was supported by an affidavit.

(3.) A preliminary order appears to have been drawn up on 28-6-62, the application having been lodged on 27-6-62. This preliminary order is again in the handwriting of the same person who recorded the statements of the applicant and his witness. On the same day we find another order attaching the so-called property in dispute. This is rather a lengthy order which is almost a verbatim reproduction of the contents of the application Under Section 145 of the Criminal P. C. and of the application for attachment in the hand of the same person. There are therefore two orders of the same date, one which may be construed as a preliminary order Under Section 145 (1) and the other an order of attachment of the property in dispute Under Section 145 (4) of the Criminal P. C. The first order is not signed, by the learned Magistrate. The order of attachment, though written by a clerk, bears the Magistrate's initials. Against this order of the learned Magistrate Pir Ghulam Shan who was a non-applicant in the original application went in revision. His revision application was heard by the Addl. Sessions Judge Srinagar. The Addl. Sessions Judge by means of his order dated 11-10-62 has recommended that the order of the trial Magistrate Under Section 145 (4) of the Criminal P. C. be vacated.