GHULAM MOHI UD DIN Vs. GANI JOO

JUDGEMENT

(1.) The above noted Revision Petitions are placed before us on a reference made by his Lordship the Chief Justice for disposal of the questions raised by a learned Judge of this Court on the controversy of the scope of proceedings under section 145 of the Code of Criminal Procedure during the pendency of a Civil Suit.

(2.) In Criminal Revision No. 78 of 1984, the proceedings were initiated before learned judicial Magistrate, Ramban on an application filed by respondents Gani Joo and three others against the petitioners on March 26, 1984 under section 145 of the Code of Criminal Procedure. The matter was taken up by the learned Judicial Magistrate for consideration on March 27, 1984, who after satisfying himself on taking into consideration the affidavits and the documents filed by the respondents found that there is imminent apprehension of breach of peace on spot over the question of possession of the disputed house. He, therefore, passed the preliminary order on this date calling upon the other side to file their objections and further called upon the parties to file their documents and affidavits in respect of their claims in regard to the question of possession regarding the disputed house. He also considered the petition under section 145, subsection (4) of the Code of Criminal Procedure separately filed by the respondents praying for attachment of subject of dispute, of which the learned Magistrate also took cognizance and issued notice to the other side returnable by 3rd of April, 1984. The application was contested by the petitioners/respondents. Inter alia a preliminary objection was also raised against the maintainability of the petition under section 145 of the Code of Criminal Procedure alleging that a civil suit relating to the same premises was also pending in the Court of Sub Judge (Chief Judicial Magistrate), Jammu, where the learned Sub-Judge in the Original Suit passed an interim order requiring the parties to maintain the status quo and denied that there was any such incident denoting any apprehension of the breach of peace, hence prayed for the dismissal of the petition. The learned Chief Judicial Magistrate by his order dated August 24, 1984 disposed of the petition under section 145 of the Code of Criminal Procedure holding on the basis of the documents produced before him that he was convinced that the device made by the non-applicant by forcible entering into the house and procuring the status quo order will not frustrate the object of making an order of attachment, which is vested in a criminal court under sub section. (4) of section 145 of the Code of Criminal Procedure to prevent likelihood of the breach of peace on the spot. On his satisfaction, he found that there is strong apprehension of breach of peace likely to be caused by the existing dispute as to the property. He, therefore, directed that the first floor of the house described in his order disputed in the present proceedings be attached forthwith and be kept under lock and key Police Station, Ramban was directed for the compliance of the order of attachment and handing over the key to the Nazir of, the Additional Sessions Judge, Ramban. The petitioners Ghulam Mohi-ud-Din and another being aggrieved against the said order of the Magistrate filed this Revision Petition under section 439 read with section 561-A of the Code of Criminal Procedure for the quashment of the order.

(3.) In Criminal Revision No. 90 of 1982, proceedings were initiated before Chief Judicial Magistrate, Jammu under section 145 on the Code of Criminal Procedure on the application of Dharam Chand (Respondent in the present petition) filed on February 3, 1982 raising a dispute over possession of House No. 143 situated at Mohalla Rehari, Jammu, with which there was a likelihood of the breach of peace. It was contended in the petition that he was in possession of the two rooms of the house and rented out the other rooms to the tenants. There was litigation with regard to one room and kitchen which was forcibly occupied by the petitioner in 1979, who filed a suit for ejectment against the respondent in the Court of Sub-Judge (C.J.M.), Jammu in which the evidence was being recorded. During the progress of the suit the petitioner-Om Parkash threatened the respondent to dispossess him and forcibly occupied one room and one kitchen in the first floor of the house, which was vacated by one S. Himat Singh-the tenant. It is further alleged that on December 29, 1981 at about 1-30 P.M. the petitioner with the assistance of several others entered into the rooms marked red in the enclosed site plan with the petition broke open the locks and started throwing on road the house-hold articles of the respondent and unlawfully dispossessed him by force. Coupled with other allegations, it was contended that a situation on the spot is very explosive as a result of which there is every apprehension of breach of peace on the spot, hence a prayer was made to initiate proceedings under section 145 of the Code of Criminal Procedure and for restoration of the possession of the two rooms problem occupied by the petitioner-Om Parkash. The learned Magistrate on February 16, 1982 after recording his satisfaction passed a preliminary order satisfying himself that there is a likelihood of the breach of peace and directed the other side by notice to file his objections with respect to the property in dispute calling upon the parties to put up their respective claims on February 23, 1982. A notice was also issued of show cause why the subject of dispute be not attached.