GULLA SHAH Vs. MOHD AMIN SHAH

JUDGEMENT

(1.) THIS application is directed against an order passed by the CJM Srinagar dated 30-4-74 as confirmed by his order dated 7-5-74. The petition arises in the following circumstances. The non-applicant, Haji Mohd. Amin Shah approached the CJM with an application for initiating (proceedings under Section 145 Criminal P. C. with respect to the (property in suit which is the third storey of a house situate in Misuma Bazar, Srinagar. It was alleged by the non-applicants that they were carrying on business order the name and style of Public Boot House in the third storey of the house. It was further alleged by the non-applicants i. e. applicants before the court below that the petitioner in this revision petition namely. Gulia Shah, entered the premises and removed the goods belonging to the applicants before the court below and took. forciple possession of the third storey. I was thus prayed that as there was a. dispute between the parties resulting in a serious breach of the peace, proceedings under Section 145 may be initiated. It was also prayed in the application that as the casa wag one of emergency, the second fly-in-, i. e. , the third storey of the house which constituted the disputed premises should be attached under Section 145 (4 ). The Magistrate by his order dated 30-4-74 found that he was satisfied that there was a dispute with respect ho the premises between the parties which threatened ,a breach of the peace. He accordingly initiated proceedings under Section 145 and issued notice of the petitioners. The learned Magistrate has held that as he was satisfied that an emergency existed necessitating the attachment of the premises in dispute, attachment be made under the third proviso to Section 145 (A ). Subsequently it appears that before the attachment could be effected the petitioner moved an application before the learned Magistrate for keeping the order of attachment in abeyance as there was talk. of a compromise between the parties. The petitioner then prayed to the court that as a civil suit had been filed by him, the proceedings may be stayed. The learned Magistrate rejected the prayer and confirmed the order of attachment made by him on 30-4 74. Hence this revision in this court.

(2.) THE petition was heard1 in the first instance by a single Judge of this court before whom Mr. T. Hussain counsel for the petitioner challenged the constitutionality of the third proviso to Section 145 (4) of the Criminal P. C. as being violative of Alrtmes 14 and 19- of the Constitution of India. In view of this contention having been raised before the learned single Judge, he issued notice to the Advocate General to appear in the case and referred the case to the Chief Justice for placing it before a Larger Bench. That is how the case has come up before us.

(3.) IN view of the points of law that have been urged before us. it is not necessary to go into the facts involved in the present case which is the function of the trial court. Mr. Hussain put forward three main contentions before us. In the first place he argued that the third proviso to Section 145 (4) was violative of Article 19 of the Constitution of India inasmuch as the petitioner had been deprived of his property without a procedure established by law. Secondly it was contended that as the proviso confers wide, uncanalized and arbitrary powers on the Magistrate to attach any property and dispossess the real owner and no guidelines have been provided, the said provision is violative of Article 14 of the Constitution. Lastly it was submitted that even if the provision was constitutionally valid there was nothing in the third proviso to Section 145 to exclude the petitioner from filing objections to the order of attachment and from asking the court to Gulla Shah vs. Mohd. Amin Shah (26. 08. 1974 -JKHC) Page 3 of 12 (26. 08. 1974 -JKHC) Page 3 of 12 recall it if it was satisfied that no emergency existed. The learned counsel conceded that if his argument on the third count succeeded then he would not press his arguments regarding 'the constitutionality of the third proviso to Section 145 (4 ).