Sardar Sardool Singh vs Teja Singh

Syed Bashir-Ud-Din, J.—Order dated 12-9-1987 of 2nd Addl. Sessions Judge, Srinagar in revision against order dated 19-9-1984 of

Judicial Magistrate (Judge Small Causes Court) Srinagar in Criminal file 27/15 of 1987 titled Sardar Sardool Singh v. State is impugned in this

revision petition.

On report of P. S. Shergari that the dispute likely to cause breach of peace in respect of shop at Amirakadal, Srinagar. The Judicial Magistrate

after recording satisfaction passed preliminary order u/s 145(1), Cr.P.C. followed by an order of attachment under Proviso 3 to Sub-section (4) of

Section 145, Cr.P.C. The other side appearing in the proceedings moved the Magistrate for dropping the proceedings on the ground that the

factum of possession of the shop has been finally decided and adjudicated by the two Civil Courts of City Judge, Srinagar and Addl. District &

Sessions Judge, Srinagar. The Magistrate vide impugned order dropped the proceedings after affording opportunities to the parties. Against this

order of 19-9-1984 a revision was filed. The revision came to be decided by the 2nd Addl. District & Sessions Judge on 12-9-1987, after the

Sessions Court found that the impugned order is not vitiated by any legal infirmity or procedural irregularity.

This revision is directed against the said order of Addl. District & Sessions Judge, Srinagar. Despite efforts of this Court to trace the parties or

the counsel, neither parties nor their counsel could be served, as the parties and their counsel are not present on the available addressed at Srinagar

as given in the petition.

In the over all facts and circumstances of the case, fact that the case is pending before this Court for last over 14 years, this Court in exercise of

powers u/s 440, Cr.P.C. is dispensing with the presence of the parties.

The examinatien of record shows that the impugned order dated 12-8-87 of learned Addl, District & Sessions Judge, Srinagar with which order

of Magistrate dated 19-9-1984 merged has been passed within jurisdiction and within confines of law. The matter has been examined in the right

perspective and no legal infirmity or jurlsdlctlonal error or procedural irregularity is attached to the order. Both the Courts have taken into

consideration material available on record and the fact that the two Courts have returned concurrent finding of fact regarding possession of the

shop in question. After taking note of legal position as envisaged in Haji Habib Ullah Shah and Others Vs. S.H.O. and Others, and Aksarul-

Taldad Ahal Tashian v. Rasool Dar 1972 JKLR 268 and Razak Dass v. Mst. Rehmti 1977 JKLR 391 : 1978 CriLJ 15 the Court found that, as

there has been final orders on question of possession of shop by competent Civil Courts, the Magistrate's response in following decisions is not

bad and he has not committed any irregularity or 11-, legality in dropping the proceedings. The order has been found to be correct and

proper..Contextually following observation of the Apex Court in Ram Sumer Puri Mahant Vs. State of U.P. and Others, is noted as under :-

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any

justification for initiating a parallel criminal proceedings u/s 145, Cr.P.C. There is no scope to doubt or dispute that position that decree of the Civil

Court is binding on the Criminal Court in a matter like the one before us.

...In the event of a decree of a Civil Court the Criminal Court should not be allowed to invoke its jurisdictional particularly when possession is

being examined by the Civil Court and parties are in position to approach the Civil Court for interim orders such as injunction or appointment of

receivers for adequate protection of the property during pendency of dispute order u/s 145, Cri.P.C. quashed.... We leave it open to parties to

move the appellate Judge in civil litigation for appropriate interim orders.

The other aspect of the matter is that when an application u/s 435. Cr.P.C. has been made to District and Senwlons Judge (which term includes

Additional Patriot & Sessions Judge) for exercise of revisicmal Jurisdictions and the Sessions Judge pursuant thereto has exercise the jurisdiction

and passed order, can a further revision lie to the High Court against the order of Sessions Judge In exercise of revlslonal jurisdiction. Chapter 32

of the Cr.P.C. which covers provisions of reference and revision does not provide for entertaining a further revision against an order passed

already in revision by the Sessions Judge. The appeal or revision is creation of statute and no litigant has right to appeal or revision unless

specifically provided for by a statute. In my view the revision even on this count is mis-conceived.

In result, the revision petition is dismissed. Inform Court below of this order and send back the record.