MISRI Vs. ZAMAN SHAH

JUDGEMENT

(1.) THIS is a reference made by learned Sessions Judge, Poonch, in Revision Petition No.6. The facts under reference are that the Additional District Magistrate, Poonch, passed orders in terms of Section 145 Cr. P. C. on 19 -9 -1992 and 29 -6 -1992. These orders were challenged by revision before Sessions Judge, who has accepted the revision and submitted the file before this Court praying that the order under revision be set aside. The only ground which has found favour with the learned Sessions Judge is that the Magistrate has not complied with the mandate of Section 145 Sub -Section (3) of Cr. P. C. and, on facts, he has come to the conclusion that no notice was published in terms of section 145 Sub -Clause (3) of Cr. P. C.

(2.) TO appreciate the controversy, it will be profitable to quote the relevant provision: "A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute."

(3.) THE counsel for respondent submits that the provision is not mandatory and it is on record that the petitioners had refused service of the summons and, therefore, it was not necessary to publish or affix the copy of the notice on conspicuous place, at or near the subject of dispute. The matter has been considered by this court on various occasions earlier and reliance is being placed on the judgment of this court in Ahmad Wani Vs. Habib Ullah Ahanger and ors reported in KLJ 1980 P.446. In this case, the matter came directly before this court and the court was of the opinion that failure to serve or publish the notice as required by Sub Section (3) of Section 145 of Cr. P. C. was a violation of the mandatory provision of law rendering the proceedings illegal. The argument that the respondents had refused or avoided service was made in that case also but the Court was of the opinion that since the respondents had not participated in the proceedings and was not a party to the proceeding, therefore, he had been prejudiced and the non -publication could not be treated to be an irregularity under Section 537 Cr. P. C.