MUKHTI Vs. GANI DOOM

JUDGEMENT

(1.) ORDER :- This criminal revision has been directed against the order dated 24-10-1985 passed by Executive Magistrate, 1st Class, Tral in proceedings under Section 145 Cr. P.C. title Smt. Mukhti versus Gani Doom and others for setting aside the same. The facts giving rise to this petition are that the petitioner Smt. Mukhti alleges to be owner in possession of a patch of land measuring 13 Kanals and ten marlas situated at village Khalil Tehsil Tral. When the petitioner started ploughing the land, the respondents made a forcible interference and wanted to dispossess her. This led to imminent danger to peace and public tranquality on the spot. The petitioner submitted an application under Section 145 Cr. P.C. to the Executive Magistrate, Tral seeking his intervention in the matter and prayed for attachment of the property in question. The Executive Magistrate directed the Naib Tehsildar concerned to make a report in the matter. The Naib Tehsildar, after conducting an on the spot enquiry, reported that there was imminent danger to the public peace. The Executive Magistrate being satisfied and convinced about the fact of existence of an imminent danger of breach of peace on the spot, passed a preliminary order. Though the preliminary order does not bear any date, yet the petitioner in the revision petition has given its date as 17-10-1985. In the preliminary order, the Executive Magistrate has give a short sketch of the circumstances of the case and the basis on which he was satisfied about the existence of imminent danger of breach of peace on the spot. He has given the description of the disputed property and recorded his satisfaction in terms of sub-Section (1) of Section 145 Cr. P.C. The learned Magistrate having directed issuance of notice to the parties, has asked them to produce documents and affidavits in support of their respective claims regarding the possession of the land. The Magistrate having recorded that he was satisfied that there was an imminent danger of breach of peace and danger of life and property on the spot, in the same order directed the attachment of the property in dispute, proceeding under sub-Section (4) of Section 145 Cr. P.C. He has kept the property under the custody of the "Numberdar" concerned. The case was posted for 24th October, 1985 for the appearance of the parties and for production of documentary evidence. It is stated that in between, the Presiding Officer was transferred and the new incumbent came who on 24th October, 1985 passed in order revoking and cancelled the order dated 17-10-1985. It is this order dated 24-10-1985 which is impugned in this revision petition. The impugned order is in urdu. However, for convenience I quote hereunder the English translation thereof : "24-10-1985 : Applicant present Non-applicant Gani Doom present. Shri Ghulam Rasool Advocate has produced the 'Vakalatnama' on behalf of rest of the non-applicants. Perused the file. As per the Intikhab-I Girdawari enclosed. there is a lis pending before the Joint Agrarian Commissioner, Srinagar concerning the property under attachment in which the said court has passed a stay order. Since the Civil Court at Tral has issued a temporary injunction regarding the. matter in question, in these circumstances, the order passed on 17-10-1985 in these proceedings is cancelled and the order dated 15-10-1984 issued by the Joint Agrarian Commissioner, Srinagar shall remain in force. Parties are directed not to engage in any kind of scuffle on the spot. The file be put up on 7-11-1985."

(2.) The aforesaid order has been assailed by the petitioner on the grounds that the order has been passed in violation of procedural law under Section 145 and 146 of the Code of Criminal Procedure. The Magistrate held no jurisdiction to cancel the preliminary and attachment order passed only a week before, the impugned order, on the round that some civil litigation was going on between the parties before the Court of Joint Agrarian Commissioner. According to the petitioner, once the Court was satisfied that there was an imminent danger to peace and public tranquality, it could not cancel the order in absence of a satisfaction contrary to the one assumed only a week or so before. It has averred that once the proceedings were started and the parties were directed to enter upon their documentary evidence through affidavits, the matter could not have been strangulated and cancelled the other day without concluding the enquiry under Section 145 Cr. P.C. or without referring the matter to a Civil Court under Section 146 Cr. P.C. or without recording a satisfaction that there was no imminent danger of breach of peace. According to the petitioner, mere pendency of a Civil Court or existence of status-quo order will not preclude the Court from concluding the enquiry under Section 145 Cr. P.C. once initiated.

(3.) This matter pertains to the year 1986. Nobody appeared for the parties. I have gone through the entire record myself and I have the benefit of the original record also which has long before been called from the Magistrate, it is stranger enough to see that the proceedings under Section 145 Cr. P.C. are being initiated and the parties noticed and are called upon to produce all the documentary evidence with respect to their respective claims regarding the possession, but the other day the matter is at once closed and the order cancelled. This being a novel procedure being adopted by the Executive Magistrate, I wanted to lay down certain principles regarding Section 145 Cr. P.C. so that the Magistrates dealing with proceedings under Section 145 Cr. P.C. can be guided properly. A lot has been discussed and laid down so far regarding this provision of law, but I wonder that even then the matter is not clear to the Executive Magistrates who are passing such orders which have no legal sanctity and validity. Before entering upon the merits of this case, I would like to say that proceedings under Section 145 Cr. P.C. are of preventive nature and are not punitive. The question of possession under this Section is to be decided expeditiously as it invokes a preventive measure. Section 145 Cr. P.C. is nothing, but it is just to check the breach of peace which at times takes place over the possession of landed property. The essence of this Section is not to decide the question of possession finally as a Civil Court, but it is only to prevent the breach of peace. The court has not to decide as to who is entitled to possession, but has to see who was in possession of the disputed property on the date of the application or two months before the date of dispute. In the light of the Magistrate in the preliminary order has to record his satisfaction Chat the breach of peace exists then he can draw the preliminary order and ask the parties to adduce documentary evidence and evidence through affidavits, or he can, if deems fit, call a witness in person for giving evidence. If there is imminent danger of breach of peace the Magistrate has to, on a separate application for attachment, record his satisfaction that there is imminent danger of breach of peace so the property he can order to be attached. What the Magistrate here has done is that he has passed the preliminary order and on the same day in the same order he has recorded that there is imminent danger of breach of peace and has ordered for the attachment of the property. It is on the next date he has cancelled this order on the ground that Civil case is pending between the parties regarding the same property before the Joint Agrarian Reforms Commissioner who has passed the stay order. Now the question arises as to whether the proceedings can be cancelled if there is a civil case pending between the parties and stay order or status-quo order has been passed in that case. This question has been dealt with and there are numerous authorities of all the High Courts, including the Apex Court and different views have been expressed. According to some authorities if there is a stay order and the civil case is pending, proceedings under Section 145 Cr. P.C. cannot continue and there are so many authorities which are in favour of continuance of the proceedings even when the civil proceedings are going on. My considered view regarding the matter is that the civil proceedings cannot operate as stay in the proceedings under Section 145 Cr. P.C. because these proceedings are preventive in nature and, as I have already observed, the scope of these proceedings is to prevent breach of peace at the spot. The matter is different if prior to the proceedings civil suit is going on between the parties and one of the parties has obtained temporary injunction from the court and that order has been made absolute. Then it can safely be said that there is no need to the Criminal Court to decide the question of possession summarily because the Civil Court has reached to a conclusion regarding the possession and in case there is any violation of that order, the parties can be punished under Order 39 CPC. But if the Civil Court has issued only a temporary injunction which is not absolute and is subject to objections of the other side, I think the proceedings under Section 145 Cr. P.C. cannot come to a stand still, it can go ahead with the adjudication of the question of possession. The matter is quite different where the Civil Court passes an order directing the parties to maintain status-quo at the spot which means that the civil court has not framed even a tentative opinion regarding the question of possession, so there is no question of cancellation of proceedings under Section 145 Cr. P.C. if such a situation arises. Under Section 145 Cr. P.C. three occasions only are provided for, dropping or cancelling the proceedings and concluding the proceedings once initiated. Once the preliminary order is passed on being satisfied from the Police report or other information that a dispute likely to cause breach of peace exists concerning any land or water, the Magistrate has to request the parties concerned in such dispute to attend his court in person or by pleader and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further putting any such documents or to adduce evidence by putting in affidavits, and the Magistrate can record the statements of those persons upon whom the parties rely in support of their respective claims. Under sub-Section 4, the Magistrate can peruse the statements, documents and affidavits, if any, so filed, hear the parties and conclude the enquiry and, if possible, decide the question of possession as to who among the parties was on the date of preliminary order or two months before in such possession of the subject of dispute. Thus the proceedings come to an end. The second circumstances arises when the Magistrate is of the opinion that none of the parties was then in such possession or is unable to decide which of them was then in such possession of the subject of the dispute, he may attach it, draw up a statement of facts, refer it to a Civil Court of competent jurisdiction to decide the question of the possession as aforementioned and will send the whole record to the civil Court and direct the parties to appear before the civil court. The third circumstance arises for the Magistrate to withdraw the order of attachment, if he is satisfied that there was no longer any likelihood of breach of peace with regard to the subject of dispute. Here in the present case no such situation had arisen. The Magistrate has neither waited for the parties to file their documents and statements of fact regarding the respective claims, nor has concluded the enquiry under sub-Section 4 of Section 145 Cr. P.C. regarding the possession. Secondly, the occasion had not arisen to him to refer the case under Section 146 Cr. P.C. to the Civil Court of competent jurisdiction to decide the question of possession and send the records back to that court and thirdly the Magistrate has not under Section 146 recorded his finding that no such breach of peace exists, so he has evolved his own procedure to revoke and cancel the preliminary order and order of attachment. In the impugned order the Magistrate has wrongly written that there is a stay order. I have gone through the original file from which it is apparent that the preliminary order and the order of attachment have been passed on 17-10-1985. The impugned order has been passed on 24-10-1985. But the Civil Court has passed an order long after this order i.e. on 3-12-1985 stating therein that the parties shall maintain status-quo at the spot and secondly the Magistrate has referred to the stay order of Joint Agrarian Reforms Commissioner which, in fact, is stay to the mutation. Two things emerge from this order first that the civil court has passed the order after the proceedings were initiated under Section 145 Cr. P.C. and after the attachment order was made u/S. 145 Cr. P.C. Secondly, the Civil Court has directed maintenance of status-quo. It means that even the civil court is not in a position to frame a tenative opinion regarding the possession of the parties. So it was incumbent upon the criminal court to go ahead with the proceedings under Section 145 and to adjudicate upon the question of possession irrespective of the order passed by the Joint Agrarian Reforms Commissioner staying the mutation. This has not been done.