Decided on June 30,1993

RAJA Appellant
Safadar Khan Respondents


- (1.)THIS criminal reference has been made on revision petition filed before the learned sessions Judge, Pulwama arising on revision petition No:9 of 1987 on 31.10.1987 who has recommended for the quashment of the impugned order passed by Learned Chief Judicial Magistrate Shopian in proceedings under Section 145 Cr. P.C.
(2.)THE parties were summoned, but despite service first they appeared and subsequently absented and then the matter came up for consideration and hearing, nobody appeared so the petition was so -moto examined and perused by me and on examination I find that the proceedings initiated by learned JM Pulwama with respect to land measuring 8 Kanals under Khasra No: 504/152 situated at Kerawa Manloo tehsil Shopian on an application transferred to him by Ld. CJM Shopian and the learned Magistrate has initiated the proceedings under section 145(1) and 145 (4) of Cr .P.C. Subsequently objections have been filed and the matter was transferred for consideration and disposal to the learned CJM Shopian on an application for transfer moved before District & Session Judge, Pulwama and the file was transferred to the learned CJM Shopian for disposal under law per orders dated 7.5.1987. The file having came up before learned CJM Shopian who after hearing the parties passed the order dated 23.6.1987 which is impugned in the present criminal reference.
(3.)THE learned Magistrate has returned a finding that as because there are several cases pending between the parties to the dispute regarding same subject matter and one party contends that the disputed land is an orchard and is in their possession and the other contends that the disputed land is an agricultural land and is also depiciled by the revenue records on this score, so the initiation of proceedings under section 145 Cr.P.C. is abinitio bad as because it is the Executive Magistrate only who had.
The learned Magistrate after having heard the Parties and also considering law which was cited by the parties at the bar had dropped the proceedings by the impugned order observing that the disputed land falling under survey No: 504/152 measuring 8 Kanals is Maidani and is being used for growing maize crops, as per the revenue records revealed to him by the Civil File titled Mst. Raja versus Lal Hussain pending between the parties in the court. In fact an order of maintaining status -quo has already been passed by the Civil court on the fateful date after hearing the parties and that order has also been made absolute in the civil suit on that very date when these proceedings had been dropped. He has also pointed out that there is another suit pending between the parties on the same subject matter which is titled Begum Jan versus Mohd. Sultan. The said suit is pending in the court of Sub -Judge Shopian and in the said suit, as per perusal of the file and objections placed on record filed by the respondents/non -applicants, the court on 12.3.1987 has passed the following order: -

"Application is supported by an affidavit Revenue record is also on the file. Issue notice to the other side. Meanwhile, non -applicants shall not interfere with the possession of the applicant till further order subject to objections of the other side. Put up on 26.3.1987." Thus it has been brought on record that a temporary injunction has been passed in favour of Begum Jan, one of the claimants to the suit against Mohd. Sultan and others who are causing interference in her peaceful possession and this fact has been lost sight of by learned Session Judge while making the criminal reference.

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