KARNAIL SINGH Vs. SHYAM LAL
HIGH COURT OF JAMMU AND KASHMIR
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(1.) 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.
(2.) 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 Ram -predecessor -in -interest of respondents 1 to 5,
andKrishan Lal - 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 & 8 of J&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 Lal 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.
(3.) 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 recommendations 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
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