Darshan Lal vs Sain Dass and Others

S.K. Gupta, J.—Heard learned counsel for the parties and also gone through the record.

By means of present petition, prayer for quashing the proceedings initiated before Executive Magistrate, Tehsildar, Bishnah u/s 145, Cr.P.C.

and setting aside orders dated 17-8-2000 passed by Executive Magistrate, Tehsildar, Bishnah and 13-10-2001 by 2nd Additional Sessions

Judge, Jammu, has been made. Before appreciating the rival contentions of the parties, brief facts need to be noticed, which are to the following

effect.

The petitioner, Darshan Lal and respondents 1 and 2, Sain Dass and Dass Ram, happened to be real brothers. The land aggregating 21 kanals

situated at village Pindi Charkan Kalan, Tehsil Bishnah contained in Khasra Nos. 900, 960, 963, 974, 923, 961, 922, 924, 967, stood allotted to

their father and thereafter ownership rights were also conferred upon their father. Their father, however, bequeathed the entire land in favour of the

petitioner by executing a Will. After the death of the father, petitioner, Darshan Lal, stepped into his shoes on the strength of a Will and allegedly

was in cultivating possession of the said land. A dispute with regard to the said land crept up between the parties and litigation in respect of the said

land commenced both in civil and revenue courts and a status-quo order is stated to have been passed by Custodian, Evacuees' Property, Jammu.

It is further stated that the respondents, in order to harass the petitioner, initiated proceedings u/s 145 Cr.P.C. on an application of the respondents

and the police report and passed the following composite order in terms of Section 145, Cr.P.C.

(Vernacular text omitted -- Ed.)

Aggrieved by this order, petitioner, Darshan Lal, canvassed its correctness before 2nd Additional Sessions Judge in Revision. Petitioner,

however, did not succeed in the Revision and its dismissal occasioned him to invoke inherent jurisdiction of this Court u/s 185 of the Code of

Criminal Procedure by filing this petition.

The sole grievance of the petitioner raised in this petition is that the Inquiry Magistrate, before formulating the preliminary order, without

recording his subjective satisfaction as to the existence of the dispute in relation to the Immovable property giving rise to an apprehension of breach

of peace on spot, attached the subject matter of dispute. It is further pleaded that the composite order has been drawn without due compliance of

the mandatory requirement of Section 145(3), Cr.P.C. of a publication and affixing a notice at or near the place of dispute. That the proceedings

u/s 145(3), Cr.P.C. could not have been initiated as the matter was already pending in revenue and civil courts and interim injunction in respect of

the said property has been granted, and that parallel proceedings u/s 145 regarding the same property is not maintainable. Lastly, it was contended

by the petitioner's advocate that the proceedings having initiated by the Magistrate u/s 145 Cr.P.C, in such circumstances, have resulted not only in

abuse of the process of law and occasioned failure of justice, and in order to secure the ends of justice prayed for quashing the proceedings and

setting aside the composite order dated 24-8-2000 passed by Inquiry Magistrate and affirmed by 2nd Additional Sessions Judge in his order

dated 13-10-2001.

The assumption of jurisdiction by an Executive Magistrate for initiating proceedings u/s 145(1), Cr.P.C. rests on its satisfaction about the

existence of dispute giving rise to apprehension of breach of peace on spot in respect of land in dispute. He must pass a preliminary order under

Sub-section (1) and afterwards make an enquiry under Sub-section (4). Where the Magistrate proceedings u/s 145 without being satisfied about

the existence of the dispute likely to cause breach of peace, and failure to serve and publish a notice as required by Sub-section (3) and jumps to

the passing of an order of attachment, in fact, being without jurisdiction and the irregularity incurable. The object of preliminary order is to give on

persons concerned in the dispute notice that the Magistrate is taking action u/s 145(3) provided for opportunities to prove their possession, so as

to enable him to decide as to which of the party is in possession on the date of the initiation of the proceedings. In other words, passing of

preliminary order is mandatory, its foundation for exercising of jurisdiction by Executive Magistrate. It is a settled proposition of law that order of

attachment of the property in dispute must be preceded by a valid preliminary order u/s 145(1), Cr.P.C. It means the preliminary order must be in

accordance with law. It, therefore, shows that the Magistrate has no jurisdiction to pass the order of attachment in case of emergency before

drawing up the preliminary order. Adverting to the composite order dated 24-8-2000 passed by the Inquiry Magistrate, it is clearly gatherable that

the order does not conform and in compliance to the mandate of Sub-section (1) of Section 145 of the Code. The requirement of publication and

affixing of notice at or near the place of dispute, which is mandatory in character in terms of Sub-section (3) of Section 145, has not been

followed. Failure to serve or publish the notice as required under Sub-section (3) is the violation of the provisions of the mandatory law in

rendering the order illegal. When the preliminary order being not in consonance with the provisions of Section 145(1) and invalid, obviously, the

order of attachment cannot be sustained and the composite order being illegal deserves to be set aside and proceedings quashed. The learned

counsel appearing for the respondents, when taken through the composite order dated 24-8-2000 passed by the trial Court and also the

mandatory provisions of Section 145(1) and Sub-section (3) and proviso to Sub-section (4), he could not effectively dispel the contention of the

petitioner.

Apart from that, when dispute between the parties pertaining to the land in dispute pending in civil/revenue courts, in such cases, preliminary

proceedings in the same property is not affordable and permissible. The decision of the Civil Court or Revenue Authority is binding on the

Magistrate. Apart from the aforesaid discussion, the light-heartedness of the 2nd Additional Sessions Judge in dealing with this case is obvious

from the fact that he, having found no force in the Revision Petition, dismissed the same without, application of mind. This has been laid down

unanimously by all the High Courts, including this High Court, that without drawing up a preliminary order in terms of Section 145(1), Cr.P.C,

order under proviso to Sub-section 4 is not sustainable.

In view of the facts and circumstances discussed above, the composite order dated 17-8-2000 passed by the Trial Magistrate and further

confirmed by the 2nd Additional Sessions Judge vide order dated 13-10-2001 suffers from inherent legal defect, and the continuation of the

proceedings in the circumstances narrated above necessitates the intervention of this Court in exercise of its inherent jurisdiction for quashing the

proceedings. Hence the petition is accepted and the impugned order is set aside and proceedings before the Executive Magistrate u/s 145 are

quashed to secure the ends of justice.