MOHAMMAD SOFI Vs. AJAB KHAN

JUDGEMENT

(1.) This criminal reference has been made by the learned Sessions Judge, Kupwara, seeking quashment of the order dated 22-2-1985, passed by the learned Assistant Commissioner, Executive Magistrate First Class, Kupwara, whereby in the proceedings under section 145 of the Criminal Procedure Code he has held the respondents to be in possession of the disputed walnut tree and directed the Superdar to hand over the possession thereof to them.

(2.) It appears, that in May, 1981, on the application filed by the respondents, proceedings under section 145 of the Criminal Procedure Code, were initiated by the learned Assistant Commissioner, Executive Magistrate, Kupwara, in respect of the possession of the disputed walnut trees. He also attached the said trees and appointed a Superdar for them. At the conclusion of the inquiry, he held the respondents herein (applicants before him) to be in possession of the disputed trees and directed the Superdar to hand-over possession of the trees to them.

(3.) Aggrieved, the petitioners filed a revision against the said order of the Magistrate. The learned Sessions Judge is of the opinion that the said Executive Magistrate had no jurisdiction to initiate the proceedings under section 145 Criminal Procedure Code in respect of the disputed trees. According to him, the trees in dispute formed an orchard, which fells outside the purview of the provisions of the Agrarian Reforms Act. He has also held that the notice in terms of Subsection (3) of Section 145 Criminal Procedure Code has not been served properly. The learned Sessions Judge has not, however, found any fault with the appreciation of evidence as done by the learned Magistrate. Consequently, he has recommended that the Impugned order of the learned Magistrate may be set aside.