HALEEMA Vs. ZAMROODA

JUDGEMENT

(1.) PETITIONER has taken a refuge under 561A Cr. P. C. while coming to this court, She has prayed for quashing the impugned orders dated 26.8.1995 and 30.12.1995 and 9X1996 passed by Judicial Magistrate, (Forest Magistrate} Srinagar. Shorn of details, Petitioner No. 1 is the owner of a shop situated at Dalgate, Srinagar, respondent -Mst Zamrooda who is the widow of Ghulam Mustafa Mir initiated proceedings against the petitioners under Section 145 Gr.P.C. in the court of Judicial Magistrate (Forest Magistrate) Srinagar, and the court below passed the impugned orders including the order of attachment of the shop. According to the petitioners, the shop was under the tenancy of husband of respondent, who before his death had surrendered his possession during his life time in favour of the petitioner No.1. Therefore, the proceedings under Section 145 Cr.P.C. are not maintainable because, no dispute arises at the spot. The shop in dispute was never in the possession of respondent No.1, however, this is a dispte of civil nature, proceedings under Section 145 Cr.P.C. could not lie. She has pleaded that petition under Section 145 Cr.P.C. is not maintainable under law and is liable to be dismissed for, preliminary order has not been framed and no opportunity was given to the petitioner to give objection regarding the attachment of the suit shop. It has further been contended that the compliance of Clause III of Section 145 regarding the publication of preliminary order has not been shown. This is the main point on which the petitioner has harped and is seeking aforementioned orders to be quashed. Respondent No.1 in her objections has refuted the claim of the petitioner to be in possession of the disputed shop while saying that the shop in dispute was under the tenancy of her husband, but after his death when they all were busy at grave yard in burrying the deceased, the petitioner forcibly broke open the lock of the shop and entered into it, so she filed an application under Section 145 Cr.P.C. In consequence of which order dated 26.8.1995 which is impugned came to be passed by the trial Magistrate.

(2.) THIS order is a composite order, two in one, the trial Magistrate, has passed the preliminary order under Sub Clause 1 of Section 45 and in the last lines has taken action under Sub -Section 4 and has ordered the attachment of the shop in dispute. The shop was attached, Another two impugned orders relates to different applications, wherein the court has ordered that the disputed shop be sealed, the respondent has apprehended that the seal of the shop has been tampered with so the court has directed the police concerned to report whether the seal has been tampered with or not. However, these two orders are not material for the purpose of disposal of this petition.

(3.) HEARD learned counsel for the parties at length. So far as this petition is concerned, the main point on which the petitioner has laid stress is, that the shop in dispute was never in possessing of the respondents. According to him, the possession has been surrendered lawfully to husband of respondent who was tenant of the shop, so the proceedings under Section 145 Cr.P.C. could not have been initiated. Secondly counsel for the petitioner contended that no preliminary order has been passed, which tantamounts the failure to comply the mandatory provision of Sub clause 1 of Section 145 Cr.P.C. Thirdly, he has contended that the petitioner was not given the opportunity of being heard regarding the order passed for the attachment of the shop.