MOHD SHABAN TELL Vs. MALIK ABDUL GANI

JUDGEMENT

(1.) In this application under section 561-A Cr. P.C., the petitioner seeks quashment of orders dated 23/7/1985 passed by Municipal Magistrate (Sub-Judge) Srinagar in a reference under section 146(1) Cr. P.C. and the order dated 14-9-85 passed by Judicial Magistrate, Handipore in accordance with section 146 (I-B) Cr. P.C. holding the respondent in possession of the disputed property within two months from the date of the order on the basis of finding returned by the civil court.

(2.) The facts, which gave rise to this petition are: That on 27-1-76 a petition was filed before the Chief Judicial Magistrate, Sopore by respondent regarding breach, of peace in respect of a shop situated at Sopore who took cognizance under section 145(1) Cr. P.C. and also attached the property. It appear that the proceedings got transferred from one court to another within the district of Baramulla and ultimately the proceedings were transferred to Judicial Magistrate, Handipore, who on 1-9.81 made a reference in accordance with section 146(1) Cr. P.C. to civil court (Sub-Judge, Sopore). Again, the proceedings were transferred from one court to another ultimately vide this court order dt. 30-3.83 the reference under section 146 Cr. P.C. was transferred for disposal to Sub-Judge. Baramulla. It appears that Sub-Judge, Baramulla after inquiring into the matter heard and concluded the arguments in the case on 23-5-85 and the judgment was to be announced as per order dt. 8.6-85 on 3-7-85. Before the judgment could be announced on that date the presiding officer (Sub-Judge Baramulla Shri Khaliq u-Zaman Bhat) got transferred as Municipal Magistrate, Srinagar and his successor on the same date referred the file to the said, Magistrate, now Municipal Magistrate (Sub-Judge Srinagarj for writing the judgment. Learned Municipal Magistrate. Srinagar, vide his Order dt. 23-7-85 wrote his judgment in the reference and sent back the same together with the record to Sub-Judge, Baramulla, to be transmitted to Judicial Magistrate Handipore who had made the reference. On receipt of the file the Judicial Magistrate, Handipore passed the order in accordance with section 146 (1-B) Cr. P.C. on 14-9-85 and it is these two orders, first on reference by Municipal Magistrate. Srinagar, dated 23- 1-85 and the other dated 14/9/1985 passed by Judicial Magistrate, Handipore, which have been challenged in this petition for quashing the same.

(3.) I have heard learned counsels for both the parties. Mr. Qayoom, appearing for the petitioner argued that the reference by judicial Magistrate, Handipore was pending decision before SubJudge, Baramulla, who had jurisdiction to pass the judgment in the case. The order in reference could be passed by the Sub-Judge, Baramulla, alone and not by Municipal Magistrate (Khaliq ulZaman Bhat) who was then transferred and taken charge of Municipal Magistrate, Srinagar and having ceased jurisdiction pending decision on the reference. The course open to the Sub Judge, Baramulla according to learned counsel, was to hear the arguments in the reference afresh and not to refer the file to Municipal Magistrate, Srinagar, for writing the judgment who had no jurisdiction having ceased to preside the Sub-Judge's court at Baramulla and his successor could confer jurisdiction on the said Municipal Magistrate to not write the judgment which could be done by this court alone. Consequentially the judgment passed by Municipal Magistrate dt. 23-7-85 is without jurisdiction and needs to be quashed together with the order passed by Judicial Magistrate, Handipore dt. 14-9-85 under section 146 (I-B) Cr. P.C. being based on a judgment passed short of jurisdiction. Learned counsel for the respondent Mr. Kaul, on the other hand argued that in this case the order dt. 23/7/1985 does not suffer from lack of jurisdiction but the order is fully covered and protected under Order: 20, Rule 2 Cr. P.C. Further, he argued that the order under section 146 (1-B) Cr. P.C. does not attract provisions of section 561.A Cr. P.C. as appeal revision and review have been barred against such order, the petitioner having express provision to seek relief from a court of competent jurisdiction after initiating fresh proceedings,