Karnail Singh vs Shyam Lal and Others

Arun Kumar Goel, Judge.

This reference has been recommended by the learned Sessions Judge, Jammu whereby order passed by the Executive Magistrate on 7th

October, 1997 in proceedings under section 145 of the Cr.P.C. has been held to be unsustainable in law.

Circumstances which led to the execution of proceedings under Section 145 Cr. P.C were that petitioner filed an application under Section 145

Cr. P.C. claiming himself to be in possession of land comprising under Khasra No: 52 and 53 measuring 8 kanals and 4 marlas. Further case of the

petitioner was that he had been cultivating the said land as a tenant and had been sowing as well as reaping the crop on it. In the month of June,

1993, to be precise on 16th June, 1993 when he went to irrigate the field, respondents threatened that in case he ventures into this exercise, he will

be done to death. Prior to this, petitioner claims that Chackoo Rampredecessorininterest of respondents 1 to 5, andKrishan Lai respondent No. 6

had been successful in getting one kanal of land out of the aforementioned area when he was assured that necessary mutation of ownership under

Section 4 and 8 of J and K Agrarian Reforms Act would be got attested in his favour. Instead of doing the needful, petitioner was threatened by

the respondents on 16th June, 1993 as aforesaid. Krishan Lai is stated to be serving in CID of the State and thus it was pleaded as an additional

factor of threat being extended by the respondents. In this background proceedings were initiated under Section 145 of the Cr. P.C. and the trial

Magistrate being satisfied that the matter is of imminent nature and unless immediate steps were taken, it is likely to lead to other complications;,

ordered attachment of the property in question and ordered that it will remain in the custody of supurdar. Parties are not at variance that during the

proceedings of this case they filed number of affidavits in support of their respective pleas and led other documentary evidence. After conclusion of

the case trial Magistrate rejected the application filed under Section 145 of the Cr. PC. and ordered the release of attached property in favour of

respondents. This order came to be questioned before the revisional court below who has made the recommendation to this court holding that the

order passed by the trial Magistrate is not sustainable in law.

I have heard learned counsel appearing for parties and with their assistance record of the case has also been examined.

Learned counsel appearing for respondents while opposing the recommedations made has forcefully urged that the trial Magistrate has rightly

appreciated the evidence led by the parties during the course of proceedings before him and has thereafter come to a correct conclusion while

dismissing the application of petitioner. In addition to this, it was pointed out by Mr, Gagan Basotra that the trial Magistrate was not required to

make detailed and threadbare enquiry as also to deal with the evidence minutely, as the proceedings under Section 145 (supra) were preventive

and summary in nature. Purpose of such proceedings as per learned counsel was only to ensure that the apprehension of breach of peace over

possessions of the land as in the present case is avoided. According to learned counsel order passed by the Magistrate is always subject to the

decision by a competent civil court where rights of the parties can be got adjudicated. On this basis Shri Basotra urged for rejecting the

recommendations and consequently dismissing the revision petition.

All these pleas have been controverted by the learned counsel appearing for petitioner. It was urged by him that no doubt proceedings under

Section 145 of the Cr. PC. are preventive and summary in nature, but still that does not mean that the trial Magistrate is not required to make a

brief reference to the entire evidence that may be brought before him during the course of proceedings.

After having considered the respective contentions as also having examined the records, for the reasons set out hereinafter recommendations

made by the learned Sessions judge below deserves to be accepted.

While adjudicating upon an application filed under Section 145 Cr. PC. Magistrate below exercises adjudicatory powers vested in him under

law. True it is that he need not discuss the evidence threadbare produced by the parties in proceedings under Section 145 Cr. PC. But that does

not mean that he need not make a reference so as to support the conclusions he may arrive on examination of such evidence. In the instant case

when a reference is made to the impugned order, it is evident that except for making a reference to the affidavits having been filed before him, there

is nothing said even in a summary manner as to what is stated in each one of such affidavits and for what reasons he is attaching any weight to those

while accepting/ rejecting such affidavits. As such it cannot be said that the evidence has been discussed briefly by the trial Magistrate.

Once this conclusion is arrived at, it cannot be said that the order passed by the trial court is sustainable in the eyes of law, and while holding it

unsustainable, learned Sessions Judge below has committed any error in the eyes of law. At this stage, to be fair to Shri Basotra, it may be noted

that he referred to certain decisions and urged that while dealing with proceedings under Section 145 Cr. PC. evidence need not to be gone into

minutely as well as in detail. As already observed, there is no dispute regarding this legal proposition. But the fact remains whether the evidence has

been discussed at all by the trial Magistrate in the instant case? Answer would obviously be in the negative.

Another plea has been raised on behalf of the respondents that this court is competent to uphold the order of trial court after examining the same

and thus turn down the recommendations made by the learned Sessions Judge below. This plea has been seriously contested by Shri Kishore

Kumar, learned counsel for petitioner, as according to him his client will be materially prejudiced if this exercise is gone into by this court. After

examination of evidence properly and in the manner discussed hereinbelow, either party can approach the revisional court below. That being so

this plea is also hereby rejected.

No other point is urged.

As a result of aforesaid discussions, recommendations made by the learned Sessions judge below vide his order passed is File No.

24/Revision on 26th October, 1998 in case titled as ""Karnail Singh Vs. Shyam Lai and others"", are hereby accepted and consequently the order

passed by the trial Magistrate in unnumbered file instituted on 18th June, 1993 decided on 7th October, 1997, titled as ""Karnail Singh Vs.

Chackoo Ram (since deceased and by his legal representatives, respondents 1 to 5 in this reference) and another, is hereby set aside. File is

remanded back to the trial Magistrate and parties are directed to restore statusquo as it existed before passing of the aforesaid order by the trial

Magistrate so far possession of land is concerned. Trial Magistrate is further directed to hear the parties afresh and then dispose of the proceedings

under Section 145 of the Cr. PC. in accordance with law as well as in the light of this decision. Parties through their learned counsel are directed to

appear before the trial Magistrate on 6th of March, 1999. Registry will ensure that the record of this file is sent back to the trial court so as to

reach well before the date fixed. It is further ordered that the Magistrate below shall hear and finally dispose of the case on or before 31st March,

1999, as both the learned counsel for the parties have stated that their clients do not intend leading further evidence in this matter.