1993 P Cr (PLP)

Ghulam Mustafa Mughal for Petitioner. Abdul Hamid Khan Shahid for Respondents. An order passed by the Sub-Judge, Muzaffarabad on 16-12-1992 is assailed through this revision petition.

2. The facts briefly stated are that land measuring 3 Kanals and 5 Marlas, comprising Khasra No.134, situated in Village Battal, Tehsil Muzaffarabad is attached under sections 145 Cr.P.C. The petitioner feeling aggrieved of the order has filed this revision petition for quashment of the order passed by the trial Court.

3. Arguing his case, the learned counsel for the petitioner submitted the following grounds for quashment of the order: (a) That the requirements of section 145, Cr.P.C. have not been fulfilled, as the order for attachment of the land is passed without recording his satisfaction by the Magistrate, and that the proceedings under sections 145 and 107, Cr.P.C. have been initiated together while the notice is issued under section 112, Cr.P.C. (b) That the land in dispute is subject-matter of a civil suit and its possession has been regulated through a stay order of the Court. The learned counsel has relied upon 1983 P Cr. L J 2590 and P L D 1991 AJ&K 60.

4. The learned counsel for the respondents controverting the arguments advanced on behalf of petitioner submitted that the application for quashment of the order in the High Court is premature, as the petitioner had ample opportunity to place his case before the trial Magistrate. The learned counsel contended that the irregularity in recording the order under section 145, Cr.P.C., if any, is not fatal to the proceedings and the Court can proceed notwithstanding the irregularity. The learned counsel for the respondents admitted the civil proceedings between the parties and the regulation of possession of land through a stay order which operates against both the parties. He placed on record an attested copy of the order passed by the Sub-Judge in the civil suit between the parties dated 28-12-1992. The learned counsel relied upon P L J 1983 Quetta 53 and P L D 1984 SC (AJ&K)19.

5. After hearing the learned counsel for the parties, I've examined the record and report of the cases cited in support of their contentions. The trial Court while passing an order under section 145, Cr.P.C. has to comply with, as far as possible, the requirements of the section. It, however, does not mean that every omission in recording the order under section 145 is fatal to the ease. However, in the case in hand, a perusal of the order passed by the trial Magistrate reveals that the land is attached under section 145, while notice is issued under section 112, Cr.P.C. The procedure for urgent cases of nuisance is provided in Chapter XI of the Cr.P.C., while section 112 finds place in Chapter VIII of the Cr.P.C. which relates to the security for keeping the peace. Though the proceedings under Chapters VIII and XI, Cr.P.C. seem similar as being preventive, but the effect of both is different in nature. The nature of proceedings under Chapter VIII relates to security for keeping peace and for good behaviour which in fact touch the liberty of a person and smack of being punitive, while nature of proceedings under Chapter XI relates to the avoidance of nuisance or apprehended danger and 'smacks of being civil in nature. Thus strictly speaking the composite proceedings under Chapters VIII and XI cannot be taken together as the former relate to the apprehension of person and latter to the attachment of property. The authority cited by the learned counsel for the respondents i.e. P L J 1983 Quetta 53 does not find place in the Book, hence I'm unable to say anything about the contention. The other authority i.e. P L D 1984 SC (AJ&K) 19 in spirit supports the above contention.

6. The Court may at times, overlook the omission of the trial Court in recording the order under section 145, Cr.P.C., especially when the case is still at a preliminary stage. But the settled principle of law is that the proceedings under section 145, Cr.P.C. cannot be allowed to continue, if the possession of land is regulated by the order of Civil Court. It is admitted by the parties that the land in dispute is regulated by the stay order of the Court and the interim order is ultimately confirmed by the Court through its order, dated 28-12-1992. In view of the factual position of the case, I am bound to follow the authority laid down by the Supreme Court as reported in 1983 P Cr. L J 2590. "

9. We have already noticed that under sub section (4) of section 145, Cr.P.C. the introduction of the words `if possible' and incorporation of the proviso under subsection (2) of section 146, Cr.P.C. clearly reflect that the order of the Magistrate, whether under section 145, Cr.P.C. or 146, Cr.P.C. is not only subject to the decision of a competent Civil Court, but it also provides that the moment civil Court takes a step to regulate the possession of the subject of dispute by appointment of a Receiver, the order of the Magistrate automatically gives way to the order of Civil Court as the Civil Court is vested with power as final arbiter. Therefore, it is wrong to suggest that it is nowhere laid down under section 145, Cr.P.C. that the Magistrate is divested of his power in presence of civil proceedings or when the possession is regulated by a temporary injunction or in presence of a recent decree for perpetual injunction; The Magistrate acting under section 145, Cr.P.C. is under an obligation to respect any recent decision concerning possession of the subject, given by a competent Civil Court. In case such a decision is not given due consideration and weight the action of Magistrate shall not only be derogatory to the norms of administration of justice, but it may also culminate in disastrous results. To give importance to the recent decree of the Civil Court or an interim order in the terms of appointment of the receiver or issuance of ad interim injunction, is also a question of judicial propriety. Thus the position finally comes to this that the Magistrate is, of course, competent to initiate proceedings under section 145, Cr.P.C. when he is satisfied from any information that there exists likelihood of breach of the peace concerning the possession of land or water or the boundaries thereof and he is within his jurisdiction to constitute an inquiry in order to determine the question of factum of possession, but the power of the Magistrate is restricted in the manner that he is excluded to advert into scrutiny of the merits or the claims of the parties to aright to possess the subject of dispute. Secondly, when merits or claim to a title or right to possess the subject is recently settled by a competent Civil Court the Magistrate shall give effect to such a recent decree concerning the question of possession and shall maintain the possession acquired by either party in the light of such decree and its execution in due course of law. Likewise, the Magistrate shall avoid interference into possession of the subject by having a recourse to attachment in presence of an order of competent Civil Court of appointment of a receiver or issuance of ad interim injunction. But mere institution of a civil suit may not necessarily stop the hands of the Magistrate to inquire into the question of possession when other conditions contained under the section are fulfilled."

7. In view of above, the revision petition is accepted and order passed by the trial Court on 16-12-1992 is quashed. A.A./546/H.CA. Revision accepted.