RAZAK DASS Vs. REHMTI (MST )

JUDGEMENT

(1.) THE Criminal Reference has been made by the learned Sessions Judge Anantnag recommending that the order dated 15 -10 1975 passed by the Executive Magistrate Anantnag in proceedings under section 145 Cr P.C be vacated and the Magistrate directed to dispose of the proceedings in accordance with law after summoning all the respondents and after hearing them.

(2.) IT appears that in proceedings under section 145 Cr. P. C. initiated against the petitioners the executive Magistrate Anantnag drew up a preliminary order. He also proceeded under section 145 (4) Cr. P. C and attached the subject matter of dispute as in the opinion of the Magistrate it was a case of Emergency which necessitated the passing of the order. When the respondent appeared before the Magistrate and filed objections he produced two attested copies of the judgments of Munsiff Anantnag and Adll. District Judge, Srinagar dated 13 -5 -74 & 5 -7 -1975 respectively. According to these order the civil Court has passed temporary injunction in respect of the subject matter of dispute in favour of Respondent No 1 against the petitioners restraining them from interfering which the possession of the respondents in the land in dispute. The learned Magistrate consequently vacated the attachment order and dropped the proceedings by his order dated 15 -10 -1975. Aggrieved by this order the petitioners came up in revision before the Sessions Judge, Anantnag who has made this reference.

(3.) IT is not denied before me that the Civil court has passed an order of temporary injunction in favour of respondent No. 1 in respect of the land in dispute restraining the petitioners from interfering with possession of the respondent No: 1 which order is subsisting. This order must be given its true effect. According to the view laid down by the Supreme Court in 1970 U.R C.J(SC):75 the order of Civil court in which cases into be respected by a criminal court taking cognizance of proceedings under section 145 Cr. P C Therefore, when the civil court of Munsiff passed an order of interim injunction in favour of the respondent No 1 and that order was confirmed in appeal by the District Judge and that order is admittedly subsisting, then it would mean that the petitioner has no cause to maintain the present proceeding under Sec. 145 Cr.p.c. The order of injunction in favour of the petitioner shuts out the case of the petitioners to move the court under sec.145 Cr.P.C. Two important factors give jurisdiction to a criminal court to proceed under sec 145 Cr. P. C. these are i) Existence of dispute over the possession of immovable property ; and ii) Danger of breach of peace because of this dispute. If any one of these factors be missings, the court will have no Jurisdiction to initiate proceedings under sec 145 Cr P C, In the instant case it is noticed that the order of injunction issued by the civil court has the effect that the petitioners are restrained from interfering with the possession of the Respondent. 1 that view of the matter the proceedings under sec 145 Criminal procedure code are wholly misconceived. However as the civil between the parties is still going on and no final decision has been given by the civil court, it will be appropriate to ask the Magistrate to stay proceedings under section 145 cr. P. C. till the disposal of the suit.