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Judgment
1.On the application of one Abdul Ahad Mir, Tehsildar, Executive Magistrate, Bandipora, took cognisance of proceedings under section 145 Cr.
P. C in respect of dispute likely to cause breach of peace over 8 kanals and 17 marlas of land bearing Khasra No. 1484, on 1061992. Alongside
on an application, considering the matter as emergent, the magistrate attached the land, the subject of the dispute and issued necessary directions
thereto, to the S. H. O Police Station, Bandipora.
2.Pursuant to the notice, one of the non applicants, namely Syed Begum, also appeared before the Magistrate on 1171992. The Magistrate after
noting that as per verbal statement of Syeda Begum the disputed land belonged to the migrants cancelled the attachment order after observing that
he had no jurisdiction. This order of 1171992 is impugned in this revision.
3.The order is challenged on the ground that once the Magistrate took cognisance and issued initial order under section 145(1) Cr. P. C and
attachment order under third proviso to Section 145 (4) Cr. P. C. the Magistrate had no jurisdiction either to limit the operation of the attachment
order to one date or to withdraw the attachment pending the main proceedings without determining the question of possession. The Agrarian
Reforms Act has nothing to do with attachment under section 145 (4) Cr. P. C. The observation of the Tehsildar' Executive Magistrate that he had
no jurisdiction is wholly misplaced. The Magistrate could not have terminated the proceedings under third proviso to Section 145(4) Cr. PC.
midway without complying with the provisions of law. It was only if the Magistrate could come to the conclusion that no dispute existed, that the
Magistrate could cancel the order and drop the proceedings.
4.Despite sufficient opportunities, the parties have not been appearing and consequently, their presence has been dispended with.
5.I have gone through the record and considered the matter.
6.Section 145 Cr. P. C. interalia provides that in case District Magistrate or Executive Magistrate first class is satisfied from police report or other
information that a dispute likely to cause a breach of peace exists concerning any land as defined in J&K Agrarian Reforms Act 1976, within the
local limits of its jurisdiction, he shall make an order in writing stating the grounds of his satisfaction and requiring the parties to attend his court
within specified time and to put in written statements of their respective claims in respect of factum of possession over the subject of dispute and to
produce such documents or to adduce affidavit evidence of such persons as the parties may like to produce in support of their respective claims.
7.The preliminary order under SubSection (1) of Section 145 Cr. P. C has to conform to the mandatory language of this subsection.
8.All ingredients must not only exist, but also coexist as an integrated whole and in letter and spirit. In the preliminary order passed under section
145(1), it is only compliance with provisions of Section 145(1), which gives jurisdiction to the Magistrate to proceed and to decide the matter
under Section 145 Cr. P.C. Defect in the preliminary order renders the subsequent proceedings null and void. Not only so, in fact all the
proceedings are rendered void abinitio and dehorns of jurisdiction. Reference can be made with benefit to AIR 1958 J&K: 17 (FB) and AIR
1971 J&KLR: (FB).
9.The order of the Magistrate under Section 145(1) Cr. P. C, on examination on the touch stone of law as above, reveals that the order does not
specifically disclose the grounds of satisfaction of the Magistrate and further the parties are not required to appear to file their written statement, to
produce documents and to adduce evidence. Instead, the order simply requires them to file objections to the order of attachment coetensrvely
ordered by the Magistrate regarding the subject of dispute. This order is anything but not an order as mandated and warranted under order 145
(4) (1) of Cr. P. C. In fact it appears that the Magistrate has been in a hurry even without passing the order as required under section 45(1) to rush
to pass an order under third proviso to Subsection 4 of Section 145 Cr. P. C to attach the property from 1061992 to 2 3692. Even, without
inviting objections and hearing the parties, the Magistrate again in a huff whimsically dismissed the application by erroneously saying that he cannot
proceed further as the subject of the dispute pertains to some migrant as orally conveyed by Syeda Begum, one of the respondents. The
Magistrate has not verified anything of the sort from record, the document and the police report available with the file. In fact the record does not
disclose any thing of this sort. The provisions of Chapter XII of Cr. P. C., which includes Section 145, are independent of any other provision of
law and are not controlled by any other statutory provision. Assumption of jurisdiction and exercise of powers under section 145 Cr. P. C is not
dependent or preconditioned by nature of ownership of the land. The only requirement is that a dispute likely to cause breach of peace regarding
possession of land exists. Once it is so, the concerned Magistrate has the powers to pass orders as warranted under section 145(1) Cr. P. C.
With object of maintenance of tranquility and to avoid disputes regarding possession of immoveable we property as referred to in the Section. The
preventive action under Section 145 Cr. P. C. is visualised to maintain peace, amity and tranquility by taking care of the disputes concerning
possession of the subject of the dispute and further to take the proceedings to the logical and in so far as determination of the factum of the
possession and/or that no dispute threatening the peace exists any more.
For the aforesaid reasons not only the impugned order is invalid and bad in law, in fact the whole proceedings taken in this 145 Cr. P. C
matter right from passing of the initial order on 1061992 are illegal, void abinitio and without jurisdiction. Accordingly the order dated 1061992
and 1171992 are set aside. The Magistrate is directed to pass such fresh orders in the matter as may be warranted by law and the matter is
remanded back to the Magistrate for passing fresh orders.