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1986 Supreme(J&K) 8
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
G.A. Kuchhai, J.
Khazir Dar - Appellant
Versus
Aziz Mir & Ors. - Respondent
Cr. Reference No. 62/1985
Decided On : 14 February, 1986
Advocate For Appellant: A.G. Mir
Advocate For Respondent: Nemo
The main legal point established is that there is no provision for spot inspection after the proceedings under section 146 of the Code of Criminal Procedure, and the magistrate is not competent to inquire on the spot and pass a final order.
Headnote:
Spot Inspection - Jurisdiction of Magistrate - The court held that there is no provision for spot inspection after the proceedings under section 146 of the Code of Criminal Procedure, and the magistrate was not competent to inquire on the spot and pass a final order. The order was without jurisdiction and against the law, and thus liable to be quashed.
Fact of the Case:
The court found that the order passed by the magistrate after spot inspection was without jurisdiction and against the law, and therefore quashed the order.
Finding of the Court:
The court found that the magistrate's order was without jurisdiction and against the law, and accepted the reference, quashing the order passed by the magistrate.
Issues: Jurisdiction of the magistrate to conduct spot inspection and pass a final order.
Ratio Decidendi: The court held that there is no provision for spot inspection after the proceedings under section 146 of the Code of Criminal Procedure, and the magistrate was not competent to inquire on the spot and pass a final order.
Final Decision: The reference was accepted, and the order passed by the magistrate was quashed, leaving the parties to approach the proper forum in accordance with the law.
2. The petitioner initiated proceedings U/s 145 Cr. p. C. before the S. D. M. Handwara. The learned Magistrate after passing preliminary order attached the property. Finally the Magistrate could not reach to any conclusion with regard to the factum of possession of the properly in dispute. He accordingly referred the matter to Sub Judge Handwara u/s 146 Cr. P. C. for determining the factum of possession. The sub Judge could not each to any conclusion with regard to factum of possession and returned a negative finding to that extent.
3. The learned S D M. on receiving the finding from Sub Judge proceeded on spot and by making a spot enquiry recorded joint statements of two witnesses and arrived at a conclusion that the respondent was entitled to possession and ordered so accordingly and restored the property in favour of the respondent Aziz Mir.
4. The action taken by the S D M. appears unknown to law and m> such provision for spot inspection after the proceedings u/s 146 is taken, is provided anywhere in the Code of Criminal Procedure nor the magistrate was competent under law lo inquire on the spot and pass a final order. The order is without jurisdiction and against law and same is liable to be quashed.
5. For the reasons given and keeping in view the order of reference, the Reference is accepted. The order dt. 16-4-1985 passed by the S. D M Handwara is quashed. The parties are left to approach proper forum in accordance with law.
The reference is disposed of accordingly.
