Aijaz Ahmad Fazil & Ors. vs Arshid Ahmad Maqdoomi & Others

This reference is made by the learned Sessions Judge, Budgam, recommending to setaside the order passed by learned Chief Judicial

Magistrate, Budgam, whereby proceedings under section 145 Cr.P.C. pending before him has been stayed till final disposal of the suit.

Proceedings under section 145 Cr.P.C. were instituted in February, 2000 before the learned Chief Judicial Magistrate Budgam. Alongwith the

proceedings, an application under subsection (iv) of Section 145 Cr.P.C. was also moved. The learned Chief Judicial Magistrate, after drawing the

preliminary order on 29th February, 2000, attached the property in exercise of the powers under sub section (iv) of Section 145 Cr. P.C. Later

on, vide order dated 26th June, 2000, the proceedings were dropped by the learned Chief Judicial Magistrate. The order of dropping of the

proceedings was challenged by means of Revision Petition before the learned Sessions Judge, Budgam, who upheld the order. The said orders

were challenged before this Court. This Court vide order dated 2lst Decem ber, 2000 set aside the orders of the trial court and the revisional court

and directed the learned Chief Judicial Magistrate, Budgam, to decide the proceedings finally in accordance with law. Pursuant to the order of this

Court the Learned Chief Judicial Magistrate proceeded to adjudicate the proceedings.

On 3rd July, 2001 the respondent herein moved an application for staying the proceedings on the ground that a suit with regard to the same

property is pending and the civil court has passed interim direction of maintenance of statusquo. Objections to the application were filed by the

petitioners herein. The learned Chief Judicial Magistrate, after considering the rival contentions, stayed the proceedings vide order dated 30th July,

2001.

Aggrieved by this order the petitioners, who have initiated the proceedings under section 145 Cr.P.C. challenged the order by means of

Revision Petition before the learned Sessions Judge Budgam. The learned Sessions Judge, after hearing learned counsel for the parties and relying

upon the Judgements cited before him, has recommended for setting aside the order of the learned Chief Judicial Magistrate observing that the

jurisdiction of the Magistrate to proceed in the matter is not ousted because of the pendency of the civil suit.

Heard learned counsel for the par ties. It is seen from the pleadings that this court vide order dated 21st December, 2001 directed the learned

Chief Judicial Magistrate, after quashing the order, to finally dispose of the proceedings in accordance with law. The respondents thereafter

instituted a suit with respect to land covered by survey Nos. 2345/165 whereas the proceedings under section 145 Cr. P.C. relate to survey Nos.

3355/140 and 3358/142. Thus the land in dispute in proceedings under section 145 Cr. P.C. and the civil suit is not the same.

Learned counsel for the respondents has submitted that the proceedings before the Magistrate cannot proceed unless there is a proper

identification of the land. It is seen from the pleadings that there is no dispute with regard to the identification of the land. The land is identified by

survey numbers. Him sub mission, therefore, has no substance.

Proceedings under section 145 Cr. P.C. cannot proceed if the civil court has passed some order deciding the rights of the parties with regard to

its prossession. Mere pendency of the suit or existence of an adinterim direction directing maintenance of statusquo by the civil court in a suit

instituted after the initiation of proceedings under section 145 Cr. P.C. does not debar the Magistrate to decide the proceedings. This preposition

of law has been settled by this court in Ghulam MohiudDin and another V. Gani Joo and eight others reported in SLJ 1987 J&K 538 and Abdul

Rashid Wani V. State reported in SLJ 1987 J&K 389. Dealing with the same preposition of facts and law, this court in para 6 of the judgement in

Abdul Rashid Wani V. State (supra) held as under :

It is true that the proceedings under section 145 Cr. P.C. are liable to be stayed or dropped if their rights have been adjudicated upon by a civil

court or in a pending civil action temporary injunction or interim direction with respect to the subject matter of dispute had been issued by the civil

court or the rights of the parties had been finally determined by any other competent court of jurisdiction under any particular statute. It does not,

however, mean that a clever party to a litigation under section 145 Cr. P.C. can defeat the provisions of law by initiating civil action after the

Magistrate had taken the cognizance with respect to the property as contemplated under section 145 Cr. P.C. If the proceedings were held to be

liable to be dropped merely on the ground of filing of a civil suit and obtaining an order of statusquo after the initiation of the proceedings under

section 145 Cr. P.C, that would mean to render the provisions of section 145 Cr. P.C. redundant and nonexistent. In the instant case an

application was filed before the Superintendent of Police, Budgam by on Mohd. Akram Wani with the prayer of initiating action under section 145

Cr. P.C. consequently upon which the police station, Budgam, submitted a petition in the court of MunsiffMagistrate, 1st Class, Chadoora on

21.10.1986 with the submission that as there existed a dispute with respect to the property, proceedings under section 145 Cr. P.C. be initiated

against the parties named in the said application. The Magistrate passed a preliminary order on 23.10.1986 by issuing notice to the parties to file

their claims and objections in accordance with the provisions of law. It appears that Gh. Mohd Waniand others filed a suit for permanent injuction

against Mohd. Akram Wani and others in the court of Munsiff, Chadoora on 30.10.1986 and filed an application for the grant of temporary

injuction on 6.10.1986 when the Munsiff issued notice to the other side for filing objections and directed that the statusquo shall be maintained on

spot till further orders. It clearly shows that no civil proceedings were pending nor any interim order issued against any one of the parties by a civil

court when the preliminary order was passed. The trial Magistrate was, therefore, justified in proceeding with the case and passing appropriate

orders in accordance with the provisions of law.

It is not in dispute that the civil suit was filed after the institution of proceedings under section 145 Cr. C.P. The interim direction issued by the

civil court is directing the parties to maintain statusquo. The statusquo order does not decide the rights of the parties with regard to possession of

the land. Such as adinterim direction does not oust the jurisdiction of the Magistrate to proceed in the matter. The order of the learned Chief

Judicial Magistrate staying the proceedings, therefore, is not sustainable under law. The learned Sessions Judge has rightly appreciated the facts

and the law while making recommendation for setting aside the order of the learned Chief Judicial Magistrate. I concur his findings and

recommendation.

The reference is, accordingly, accepted and order of the learned Chief Judicial Magistrate, Budgam, is set aside. He shall determine the

proceedings as directed by this Court earlier vide order dated 2lst December, 2001.