Krishan Singh and Others vs Romesh Kumar

A.M. Mir, J.—Criminal Revision Petitions Nos. 1, 2, 3 and 4 of 1988 have been directed against the orders passed by the Tehsildar,

Executive Magistrate, 1st Class, Samba in the proceedings taken in terms of Section 145 of the Code of Criminal Procedure somewhere in the

beginning of last fortnight of 1987. The orders impugned in these four revision petitions are stereo-type. The Executive Magistrate has while

proceeding in terms of the abovementioned provision of law drawn up orders, which are more orders of attachment rather than preliminary orders.

This order will dispose of all the four revision petitions as the points of law involved are identical.

The Executive Magistrate has drawn up an order suggesting that he had perused the application and the relevant documents and it appeared that

the non-applicants therein had been forcibly dispossessed. The learned Executive Magistrate ordered that the non-applicants be asked to file their

objections and documents in support of their possession with respect to the land in question. Thereafter the learned Magistrate has jumped to the

concluding proviso of Subsection (4) of Section 145 and attached different parcels of land in question.

I have perused the record and heard the learned Counsel for the parties.

The scheme of Section 145 of the Code of Criminal Procedure is self-explanatory. It lends jurisdiction to a Magistrate after his being satisfied

that there exists a dispute in respect of land, water or boundaries thereof, which is likely to cause a breach of peace. He has to be satisfied on this

score and has to record his grounds of satisfaction and also direct the parties concerned to attend his court in person or by pleader. He has also to

ask the parties to put in their written statement with documents/affidavits in support of their respective claims. The service and publication of such

notice is to be ensured in accordance with Sub-section (3) of Section 145, Cr. P.C. After drawing up the preliminary order in accordance with the

above requirement of law the Magistrate can proceed in terms of Sub-section (4) of Section 145 for attachment of the property.

On the perusal of the orders impugned in these Revision petition, it transpires that the learned Magistrate has proceeded in a mechanical way

and passed those orders in a routine manner without drawing a preliminary order in accordance with law Mr. S.L. Kotwal, the learned counsel for

the petitioner has assailed the impugned orders on the anvil of analogy explained above. The point came up for consideration before a full bench of

this Court in Criminal Reference No. 34 of 1970 reported in 1971 J&K LR 414. The Court enumerated the following necessary ingredients of a

valid preliminary order:--

(i) a statement that the Magistrate is satisfied as to the existence of a dispute likely to cause a breach of the peace;

(ii) the ground of being so satisfied;

(iii) the correct description of the property;

(iv) a direction requiring the persons involved in the dispute to attend this Court within a time to be fixed and put in written statement of their claim

in respect of the issue of actual possession; and

(v) a further direction to produce all documentary and affidavit evidence on which they rely;

The Court accordingly has held that defects in the preliminary order like failure to set out the grounds failure to specify the property in dispute or

failure to serve or public notice as required by Sub-section (3) of Section 145 are violations of mandatory provisions of law and renders all

subsequent proceedings void and without jurisdiction.

A similar view has been taken by Full Bench of this Court in Ahsan Sofi and Others Vs. Sona Mir, . In this case it was held that an order not

drawn up in terms of Sub-section (I) of Section 145 of the Code of Criminal Procedure is invalid and such an order will cause prejudice to the

other side. The Full Bench also has held that where the order suffers from such infirmity, no action under Sub-section (4) of Section 145 Cr. P.C.

can be taken. This view was also followed by a single Bench of this Court in Criminal Petition No. 16 of 1985 reported in 1985 Kash LJ 380.

The object of Section 145 is to prevent breach of peace and to find out as to who was in actual possession of the disputed land. For

ascertaining the actual position, drawing up of a preliminary order is a sine-qua-non for the Magistrate. The preliminary order has necessarily to

conform to the conditions laid down in Sub-section (1) of Section 145, Criminal Procedure Code in the most unambiguous and unequivocal terms.

In the cases under consideration the Magistrate has not recorded his satisfaction of danger of breach of peace neither has spelled out the grounds

of such satisfaction. The impugned orders fall short of any description of respective parcels as all the four orders seek to attach land comprising of

survey No. 1594 of village Birpur, Tehsil Samba. The direction given to the other side is defective and the publication part is backed out. The

learned counsel for the respondents has argued that the impugned orders are required to be read in the light of notices issued by the office of the

Magistrate is not tenable as these notices have been issued in compliance with the impugned orders and have been scribed by a clerk. The

impugned orders do not satisfy the test of full application of the mind on the part of the Magistrate. These orders are date free. The orders of

attachment in terms of Sub-section (4) of Section 145, Criminal Procedure Code happen to be such which cause serious inconvenience and

prejudice to the other side. Such extra ordinary powers cannot be allowed to be exercised as a matter of routine. The trial Magistrates are

required to apply their own mind to the facts of every case.

In view of the aforesaid discussion, I allow the petitions and quash the impugned orders. The attached property be handed over to the person

from whom the superdars have taken the possession. This order disposes of Cr.M.Ps. 1, 2, 3 and 4 of 1988 also.