HAMID SHEIKH Vs. NAZIR DAR

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge Srinagar for setting aside the order of attachment passed by the trial Magistrate under Section 145 Sub-clause 4 of the Code of Criminal Procedure. As the case involved substantial questions of law on which an authoritative pronouncement of this Court was necessary, it was referred to us by a Single Judge, who had heard the case in the first instance.

(2.) WE have heard the counsel for the parties on length not only on the question as to whether or not the attachment order should be vacated but also on the question as to whether or not the entire proceedings being utterly misconceived are tit to be quashed.

(3.) THE facts leading to the present reference are as follows:- On 25-6-1962, the non applicants made an application before the District Magistrate Anantnag for taking action tinder Section 145 Cr. P. C. against the petitioners with respect to 22 Kanals and 11 Marias of land being Khasra Nos. 297, 493, 705, and 764 situate at Village Chawalgam Tehsil Kulgam. The District Magistrate Anantnag sent the application to the police for a report. The police report was submitted on 3-7-1962 and on 21-7-1962, the petitioners before the Sessions Judge appeared before the trial Court and objected to the proceedings being drawn tip Under Section 145 Cr. P. C. on the ground that a similar application submitted by the applicants before the trial Court. was dismissed by the Munsiff Magistrate Kulgam. Ultimately on 7-8-1962, the learned Magistrate drew up proceedings and ordered attachment Under Section 145 Cr. P. C, Clause 4. It appears that the applicants bereie the trial Court brought a suit for possession with respect to the very land which is in dispute in the present cas5 against the petitioners in this Court. In that suit, the petitioners clearly pleaded that the defendant Gani Sheikh had dispossessed them seven months before the filing of the suit and, therefore, they prayed for a decree for possession. As the plaintiffs did not, however, deposit the Court fees, the suit was dismissed on 3-3-1962. About two months later that is to say on 12-5-1962 the applicants before the trial Court, made an application befora the Munsiff Magistrate 1st class Kulgam for taking" proceedings Under Section 145 Cr. P. C. in respect of ihis very land, The learned Magistrate dropped the proceedings on 20-6-1952 holding that no case for drawing to proceedings Under Section 145 Cr. P. C. was made out. Six days afterwards, It. appears that the petitioners moved the District Magistrate Anantnag for drawing up proceedings Under Section 145 Cr. P. C. with the result indicated above. We might mention here that In the application filed by the; applicants before the learned District Magistrate Anantnag, the applicants had deliberately concealed the fact that a previously instituted suit by them for possession had been dismissed by the civil Court and that a similar application made, only a few days before to the Munsiff Magistrate 1st class Kulgam was also dismissed, on merits, me police report also clearly went to snow, that the applicant before the District Magistrate had been dispossessed long long before the institution of the present proceedings and that the petitioners before the Sessions Judge, were the persons who were in actual possession of the land in question. The police, however, recommended initiation of proceedings and attachment became it thought that the applicant before the trial Court being rightful co-sharers were deprived of their share in the property. This is, indeed, an extra ordinary recommenda. tion to have been made to the Magistrate. In fact, on the police report, it was absolutely clear that the petitioners before the District Magistrate were not in possession at all and, therefore, there could be no question of any dispute with respect to possession. Section 145 of the Code of Criminal Procedure, deals mainly with the question of possession and possession alone. As the applicants before the District Magistrate were not in possession of the properties on their own showing, the Magistrate had no jurisdiction to initiate' proceedings under Section 145' Cr. P. C. learned Counsel for the applicants before the trial Court and non-applicants in this Court, suomineo, however, that as a dispute with respect to possession arose, between the parties, the Magistrate had ample jurisdiction to proceed Under Section 145 Cr. P. C. and to attach the properties Under Section 145 Sub-clause 4 Cr. P. C. learned Counsel further contended that it is not necessary for the application of 145 Cr. P. C. that a dispute mentioned therein should be a bona fide dispute. In support of his argument, he has relied on a full bench decision of the Calcutta High Court reported in Agni Kumar Das v. Mantajuddin AIR 1928 Cal 610.