Haleema vs Zamrooda

Petitioner has taken refuge under 561A Cr.P.C. while coming to this court. She has prayed for quashing the impugned orders dated 26.8.1995

and 30.12.1995 and 9.7.1996 passed by Judicial Magistrate, (Forest Magistrate) Srinagar. Shorn of details, Petitioner No. 1 is the owner of a

shop situated at Dalgate, Srinagar. Respondent Mst. Zamrooda, who is the widow of Ghulam Mustafa Mir, initiated proceedings against the

petitioners under Section 145 Cr.P.C. in the court of Judicial Magistrate (Forest Magistrate) Srinagar, and the court below passed the impugned

orders including the order of attachment of the shop. According to the petitioners, the shop was under the tenancy of husband of respondent, who

before his death, has surrendered his possession during his life time in favour of the petitioner No.l. Therefore, the proceedings under Section 145

Cr.P.C. are not maintainable because, no dispute arises at the spot. The shop in dispute was never in the possession of respondent No. 1,

however, this is a dispute of civil nature, proceedings under Section 145 Cr.P.C. could not lie She has pleaded that petition under Section 145

Cr.P.C. is not maintainable under law and is liable to be dismissed for, preliminary order has not been framed and no opportunity was given to the

petitioner to give objections regarding the attachment of the suit shop. It has further been contended that the compliance of Clause HI of Section

145 regarding the publication of preliminary order has not been shown. This is the main point on which the petitioner has harped and is seeking

aforementioned orders to be quashed. Respondent No. 1 in her objections has refuted the claim of the petitioner to be in possession of the

disputed shop while saying that the shop in dispute was under the tenancy of her husband, but after his death when they all were busy at grave yard

in burying the deceased, the petitioner forcibly broke open the lock of the shop and entered into it, so she filed an application under Section 145

Cr.P.C. in consequence of which order dated 26.8.1995, which is impugned, came to be passed by the trial Magistrate.

This order is a composite order, two in one, the trial magistrate, has passed the preliminary order under Sub Clause 1 of Section 145 and in the

last lines has taken action under Sub Section 4 and has ordered the attachment of the shop in dispute. The shop was attached. Another two

impugned orders relate to different applications, wherein the court has ordered that the disputed shop be sealed, the respondent has apprehended

that the seal of the shop has been tampered with so the court has directed the police concerned to report whether the seal has been tampered with

or not. However, these two orders are not material for the purpose of disposal of this petition.

Heard learned counsel for the parties at length. So far as this petition is concerned, the main point on which the petitioner has laid stress is, that

the shop in dispute was never in possession of the respondents. According to him, the possession has been surrendered lawfully to husband of

respondent who was tenant (SIC) by the shop,

so the proceedings under Section 145 Cr.P.C. could not have been initiated. Secondly counsel for the petitioner contended that no preliminary

order has been passed, which tantamounts to the failure to comply the mandatory provision of Sub Clause 1 of Section 145 Cr.P.C. Thirdly, he

has contended that the petitioner was not given the opportunity of being heard regarding the order passed for the attachement of the shop.

So far as the first point is concerned, it is pure and simple a factual assertion which can be dealt with by the trial magistrate, after martialling the

evidence, this court cannot interfere under section 561A Cr.P.C. with the factual aspect of the case by way of quashing the impugned order dated

26.8.1995. Virtually the petitioner should have made such application before the trial magistrate and should have contested this point before him

who is in a position to decide this point after weighing the evidence of both the sides.

So far as the contention of learned counsel for the petitioner is concerned, that there is no preliminary order passed, the impugned order dated

26.8.1995 is virtually an order of attachment under Clause IV of Section 145 Cr.P.C., so the whole proceedings required to be quashed, because

there is no compliance of the mandatory provision of law under Sub Clause 1 of Section 145 Cr.P.C. I have gone through the preliminary order,

though there are formal defects in it, but the order is composite one and is in detail. The learned Magistrate, has given the facts of both the sides

and has drawn the preliminary order on the basis of the facts and on the basis of record produced before him and in the last lines he has taken

action under Sub Clause IV and attached the disputed shop. First I am of the view that the composite order in such cases to be made should be

avoided by the Magistrates, because, sub section 1 of Section 145 confers the jurisdiction on the Magistrate to decide the fact of actual

possession, so preliminary order must be framed strictly in accordance with sub sectional of Section 145

Cr.P.C. It should contain all the ingredients of sub section 1, i.e., (i) a statement that the magistrate is satisfied as to existence of the dispute likely

to cause a breach of peace; (ii) the correct description of the property; (iii) the grounds of being so satisfied (iv) a direction requiring the person

involved in dispute to attend his court within time to be fixed and to file the written statement of their claims in respect of the issue of actual

possession and (v) further direction to produce all documentary and effective evidence on which they rely.

After passing the valid preliminary order, then the Magistrate has to go ahead in accordance with other Sub Clauses. After the action is taken

under clause 1, jurisdiction vests with the Magistrate to proceed on. It is why the order to be passed under last proviso of Sub Clause IV is to be

passed subsequent to the passing of the preliminary order, on being satisfied with its requirements. However, if the composite order is passed and

all the ingredients of preliminary order are included in it and subsequent to it in the same order magistrate passes an order under Sub Clause IV,

this can be said to be a formal defect and not of substance on this defect impugned order cannot be quashed, but if in this composite order,

mandatory directions under Sub Clause I are not complied with, preliminary order is defective and in violation of mandatory directions, then the

said order cannot be considered to be the preliminary order and in the absence of such preliminary order, order passed under sub clause IV in the

same order cannot be held to be valid. In short, if in the composite order requirements of sub section 1 are not strictly complied with, then the

whole composite order is bad in law. My view is fortified by SLJ1980 page 585 in which Hon'ble Mr. Justice Mufti Bahauddin, Acting Chief

Justice, as he then was, has held:

Composite order made by the Magistrate Satisfaction regarding the existence of dispute not included in the order passed under clause (I) but

mentioned in the order passed under clause (4) Proceedings not without jurisdiction. It has been held that the defect is formal and not of

substance.

In this case, though the order is composite, but no fatal defect has been pointed out in the pleadings. A detailed preliminary order has been

passed covering all the ingredients and then the subsequent order for attachment has been made under Clause IV of Section 145 Cr.P.C.

Lastly it was contended that the petitioner was not given the opportunity of being heard before passing the order under sub section 4. This

argument is not convincing one, because, the order to be passed under sub section 4 is of emergency nature. In case the magistrate is satisfied that

there is immediate apprehension of breach of peace, he can pass the order of attachment without notice. It is kept open to the respondent to place

the documents and the evidence on the record and satisfy the Magistrate that there is no apprehension of breach of peace and there is no dispute,

it is always open to the Magistrate to drop the proceedings once he is so satisfied. So it is not necessary for passing the order under Sub Clause

IV to issue a notice to the otherside before passing such order, if the Magistrate is satisfied that there is apprehension of imminent breach of peace.

Here in this case, from the pleadings, it is obvious that no defect in the composite order has been pointed out excepting noncompliance of

Clause III of sub section 5.

Before parting with the file, I feel that I may fail in my duties, if I will not point out the defects in the impugned order which is composite one

consisting of both preliminary order and order for attachment of the suit property under sub clause IV. These defects have not been pointed out in

the application under Section 561A, which is under disposal nor my attention towards these facts has been drawn by counsel for the petitioner

during the course of arguments. However, while examining the whole file, I feel that the learned Magistrate, while drafting the impugned order, has

not employed the method and manner in drafting the impugned order which is required under Section 145 Cr.RC. While recording the facts on

two full pages and on its third page, operative order of which reads as under has been passed:

... I have considered the affidavits and the statements above quoted and all other documents on record and am of the opinion that grounds have

been disposed at this stage which hint at the likelihood of breach of peace relating to suit property. This situation may turn and may be a reason of

loss of life or limb of any one of the parties.. .

The said order is not in consonance with the language and with the requirement of Section 145 (1). It would be feasible to quote the

SubSection 1 of Section 145 Cr.RC.

Whenever a (Chief Judicial Magistrate, or any other Judicial Magistrate of the first class) is satisfied from a police report or other information that

a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his

jurisdiction, he shall make an order in writting, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to

attend his Court in person or by pleader; within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as

respects the fact of actual possession of the subject of dispute (and further requiring them to put in such documents, or to adduce, by putting in

affidavits, the evidence of such persons, as they rely upon in support of such claims): (Provided that where the dispute likely to cause a breach of

peace concerns any land as defined in the Jammu and Kashmir Agrarian Reforms Act, 1976 the powers under this section shall be exercisable

only by the District Magistrate, or an Executive Magistrate of the first class).

After reading the language of SubSection 1 of Section 145 Cr.RC, it is obvious that the requirement of this subsection is that the Magistrate

should record satisfaction from the police report or other information that (SIC), dispute likely to cause breach of peace exists, what the

Magistrate in the impugned order has done is that he has used the word opinion instead of satisfaction. He has stated that in his opinion grounds

have been disclosed at this stage which hints the likelihood of breach of peace. This language is not inconsonance with the requirement of law as

envisaged in Clause I of Section 145 Cr.P.C. The word 'Opinion', I think is not the substitute of word 'satisfaction' and word 'opinion' at the face

of its appears to be light in weight vizaviz the word 'Satisfaction'. The word 'opinion' is something more than mere impression. Meaning of word

'opinion' in New Webeser's Dictionary as been shows as ""a judgment or belief i.e. stronger than an impression but less firm than positive

knowledge."" While the word 'satisfaction means satisfied. In judicial dictionary by Yudhistra 1984 term 'Satisfied has been explained as free from

doubt, anxiety or uncertainty.

So the word used by Magistrate that 'in his opinion' is not in consonance with the language of Sub Clause I of Section 145 Cr.RC and cannot

replace the word satisfaction. The requirement of the mandate of law from the Magistrate is to record satisfaction on the basis of grounds regarding

existence of dispute likely to cause a breach of peace. Here also the Magistrate has in cursory manner written that the grounds have been disclosed

which 'hint' also is not proper word. Requirement of law is that, it should not hint towards the likelihood of breach of peace, but the Magistrate

should be fully satisfied regarding the existence of dispute which may cause breach of peace. The Trial Magistrate has coined his own words, but

they are not equivalent substitutes for the words used in the provision of law. The requirement of law is that the Magistrate should be fully satisfied

for the existence of dispute which is likely to cause the breach of peace. Had there been written that he is of the firm opinion then the matter would

have been different and it would have been very near to the word satisfaction, but that has not been done. These two defects which I have pointed

out in the preliminary order could be fatal to the whole proceeding but I uphold the impugned order on the ground that the trial Magistrate has

perused all the documents and after perusing the case, he has framed the opinion. I have also perused the file, I feel that there was sufficient ground

for the trial court to proceed both under section 145(1) and (4). I also feel that he has taken the appropriate, action, but the order has been poorly

drafted, keeping alive so many defects in it. I maintain the impugned order only because, the substantial justice has been done in the case,

otherwise if going to the technicalities, order could not sustain. No doubt Magistrate has perused the record and has applied his mind in right

perspective, but he has drafted the order in a careless manner, leaving several defects in the order. It is enjoined upon on all the Magistrates

dealing with the case of Section 145 Cr.P.C., that they should keep in view the requirements of mandate of law given under Section 145 Cr.P.C.

and then pass the orders in accordance with the requirement of law, and secondly so far as possible, Magistrates should avoid to pass composite

orders. Preliminary order vests the jurisdiction to the Magistrate and the order to the passed in Clause IV is to be subsequent to the preliminary

order.

For these reasons, therefore, the application is dismissed. Record, if any, be sent back to the trial Court.