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2009 Supreme(J&K) 90
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Muzaffar Hussain Attar, J.
Mohd. Sultan Mir & Ors. - Appellant
Versus
Gh. Nabi Mir - Respondent
561-A Cr.P.C. No. 122/2007
Decided On : 04 March, 2009
Advocate For Appellant: M. Aijaz
Advocate For Respondent: S.H. Thakur
The court established that the proceedings were an abuse of the process of the court and discussed the legal provisions and judgments related to the jurisdiction of the Magistrate to initiate action u/s 145 of the Code.
Headnote:
Abuse of Process - Dispute concerning land - Section 145 Cr.P.C - Summary of Acts and Sections: Section 145 Cr.P.C, Chapter XII of the Code of Criminal Procedure Svt. 1989, Section 107 of the Code, Section 561-A Cr.P.C - The court discussed the legal provisions of Section 145 Cr.P.C and its jurisdiction, the right to possess immovable property, and the exercise of inherent powers of the High Court under Section 561-A Cr.P.C.
Fact of the Case:
The respondent filed an application u/s 145 Cr.P.C claiming possession of land. The court found that the respondent was out of possession of the land before the initiation of proceedings. The petitioners challenged the proceedings, and the revision petition was dismissed. The petition under section 561-A Cr.P.C was filed seeking quashment of proceedings u/s 145 Cr.P.C along-with the orders passed thereon.
Finding of the Court:
The court found that the proceedings were an abuse of the process of the court and required to be quashed. The court also discussed the legal provisions and judgments related to the jurisdiction of the Magistrate to initiate action u/s 145 of the Code.
Issues: The issues involved the jurisdiction of the Magistrate to initiate action u/s 145 of the Code and the abuse of process of the court.
Ratio Decidendi: The court held that the proceedings were an abuse of the process of the court and required to be quashed. The court also discussed the legal provisions and judgments related to the jurisdiction of the Magistrate to initiate action u/s 145 of the Code.
Final Decision: The petition was allowed, and the proceedings u/s 145 Cr.P.C initiated by the Executive Magistrate were quashed. The order of the Additional Sessions Judge was also quashed. The Executive Magistrate was directed to hand over possession of the land in question to the petitioner.
2. Facts briefly stated:
The respondent Gh. Nabi Mir filed an application u/s 145 Cr.P.C before the court of Ld. Executive Magistrate 1st. Class (Tehsildar) Bandipra. The application was filed against the present petitioners. In the said application respondent pleaded that he has 4 kanals and 12 marlas of land in his ownership covered by survey No. 1611 situated at Bandipora. The application filed by respondent further reveals that adjoining the said land is land measuring 4 kanals and 02 marlas covered by survey No. 1610 min which is in the ownership of present petitioners. It is further pleaded in the application that present petitioners by employing muscle power have forcibly taken possession of 1 kanal 2 marlas of land out of the land of respondent and have annexed the same with survey No. 1610 min. The further case set up in the application is that under the supervision of Naib Tehsildar Bandipora the land was demarcated on spot and the demarcation proceedings resulted in showing that land measuring 1 kanals 2 marlas which are in the possession of present petitioners, in fact belongs to respondents. It is further pleaded by respondent that the present petitioners were requested number of times not to cause any impediment to the petitioners right to utilize 1 kanal 2 marlas of land but the present petitioners are not permitting the respondent to occupy land which has given rise to breach of peace on spot. This application has been drafted on 18th May 2005 and record reveals that same has been presented before Ld. Executive Magistrate 1st. class Bandipora on 16th June 2005. Record of the revisional court further reveals that alongside the application u/s 145 Cr.P.C another application u/s 145(4) Cr.P.C was also filed on almost same grounds which were taken in the first application and request was made for attachment of the land in question as dispute over same has been raised which may give rise to likely breach of peace on spot. On the reverse of the said application is recorded report of some Revenue Officer . The said report reveals that as per record, land measuring 4 kanals 8 marlas under survey No. 1610 min are in ownership of present petitioners and land measuring 4 kanals 12 marlas under survey No. 1611 min are recorded in the name of father of respondent. The report further reveals that in respect of both survey numbers dispute has arisen between the parties for about last two years. The report further reveals that the reporting authority alongwith the Girdawar of the area conducted demarcation of the land on 6th Nov. 2004 and as per demarcation it was found that there is deficiency of 1 kanal and 2 marlas of land of the respondent which land was found to be in possession of the present petitioners. The report further reveals that respondent had stated before the revenue authorities that present petitioners are not handing over the possession to the respondent of 1 kanal and 2 marlas of land. The revenue officer thereof while referring to stance of respondent has stated that because of this there is apprehension of breach of peace and had requested for initiation of action u/s 145 Cr.P.C and for attachment of the land. The record of the revisional court further reveals that on 18.06.05 an order was passed by ld. Executive Magistrate 1st. Class Bandipora. English translation of the same is as under:-
"On 16.06.05 an application has been presented by the applicant. SHO Bandipora be informed to give his report about the application. Concerned patwaris report has been obtained which has been made part of the file.
The perusal of
