ABDUL RASHID WANI Vs. STATE JAMMU AND KASHMIR

JUDGEMENT

(1.) Aggrieved by the preliminary order dated 23/10/1986 passed by Judicial Magistrate, Chadoora and order of attachment dated 19/11/1986 passed by the Chief Judicial Magistrate, Hadgam, the present revision has been filed on the ground that the aforesaid orders were illegal, erroneous and without jurisdiction. The preliminary order did not fulfill the conditions of section 145 (1) Cr. P.C. as it did not contain the grounds and the material available on record which had satisfied the Magistrate as to the existence of breach of peace on spot with respect to the property in dispute. The order lacked in the specification of the land, the subject matter of the dispute. The petitioners were and are in peaceful possession of the land where they have raised three storeyed construction in Survey No. 1175 mm and were residing there. It is further submitted that it was wrongly alleged that the construction had been raised in survey No. 933/1196 which was State land and the column of produce of the Khasra Girdwari clearly revealed that the land in question had been growing wheat and maize which was a land within the meaning of the definition given in the Agrarian Reforms Act regarding which Executive Magistrate alone had the power and jurisdiction to initiate proceedings under section 145 Cr. P.C. A suit was pending in the court of Munsif, Chadoora with regard to the same property and between same parties where in the order of status quo was passed. As the civil suit was pending, the trial court was not competent to proceed with the proceedings under section 145 Cr. P.C. The police report, the basis for initiating proceedings under section 145 Cr. P.C. could not be relied upon as the same did not form any evidence in the case. The preliminary order had not been published at conspicuous place as was envisaged under section 145 Cr. P.C. which has prejudiced the case of the petitioners. The Division Officer, Police Division, Charishareef in his report submitted to the Executive Magistrate, Chadoora had reported that the petitioners were in possession of the house in question and the land. It is further submitted that the said Division Officer had subsequently wrongly stated that nobody was residing in the said house.

(2.) Vide Cr. M.P. No. 75 of 1987 it was prayed that the provisions of section 145 Cr. P.C. be declared ultra-vires of the Constitution for the reason stated in the said application. It was submitted that as the question was a pure question of law, the same may be raised in the Criminal Revision No. 74 of 1986. The said application was allowed by this court on 6.5.1987 and the plea incorporated therein regarding the constitutionality of section 145 Cr. P.C. made a part of the grounds of revision.

(3.) I have heard the learned counsels for the parties and have perused the record.