RAHMATULLAH Vs. MOHD ASHRAF AND ORS

JUDGEMENT

(1.) Through the medium of instant criminal revision filed under Section 435 Cr.P.C., the petitioner inter alia seeks setting aside of order dated 25.07.2016 passed by respondent No.3-Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms), Ramban whereby withdrawing the proceedings pursued under Section 145 Cr.P.C. without giving any opportunity of being heard to the applicant therein to produce the evidence with respect to the fact of possession of the subject of dispute.

(2.) The case of the petitioner is that the petitioner is the owner in possession of land comprising Khasra Nos. 150 and 159 measuring 12 kanals 5 marlas and 13 marlas respectively situated in village Bohardar, Tehsil Banihal. It is stated that the possession of one half of the aforesaid land was handed over to the petitioner on 10.12015 in the presence of the then Tehsildar Banihal and the petitioner is in exclusive possession of the aforesaid land since then. On 26.04.2016, the respondent Nos.1 & 2 threatened the petitioner to forcibly occupy the share of the petitioner and on 16.05.2016 the petitioner presented an application under Section 145 of Cr.P.C. before the learned Court of Additional Deputy Commissioner (with the powers of Agrarian Commissioner), Ramban, respondent No.3 herein, to initiate the proceedings under Section 145 and protect the interest of the petitioner in the aforesaid land. It is also stated that pursuant to the application of the petitioner, the respondent No.3 directed the SHO Police Station Banihal to produce the non-applicants therein before his court on 07.06.2016, but the non-applicants therein did not appear before the court, thereafter on 11.06.2016, the respondent No.3 directed the Tehsildar Banihal to initiate action, under Section 145 Cr.P.C., in presence of both the parties on spot. Pursuant to the directions passed by respondent No.3, respondent No.4 instead of personally proceeding on spot, directed Niab Tehsildar Banihal to report in the matter. Pursuant to the order of respondent No.4, respondent No.5 recorded the statements of non-applicants and their witnesses who have enmity with the petitioner. Respondent No.5 did not give any opportunity to the petitioner to produce the witnesses in support of his claim of having possession over the subject of dispute. Respondent No.5 also refused to record the statements of the Chowkidar and other witnesses of the village and prepared the report without identifying the subject of dispute and fact of possession of the subject matter. It is also stated that respondent No.5 though recorded the statements of some persons jointly but none of them has stated as to who was in possession of the subject of dispute on the relevant date. The respondent No.4 relying on the report of respondent No.5, submitted his report to respondent No.3 vide order dated 207.2016 and respondent No.3 solely relied on the report of respondent No.4 passed the final order on 25.07.2016 thereby withdrawing the proceedings pursued under Section 145 Cr.P.C. without giving any opportunity of being heard to the applicant therein to produce the evidence with respect to the possession of the subject of dispute.

(3.) The petitioner being aggrieved of the said order, seeks setting aside of the same on the following grounds: