- (1.)Leave granted.
(2.)In this appeal filed by the member of the first party in the proceeding under section 145 of the Criminal Procedure Code, the judgment dated 29/3/2001 passed by the high Court of Jammu and Kashmir, at jammu, in case no. 27/2000 which was filed by the members of the second party who are respondents herein under section 561-A of the Code of Criminal Procedure, 1908 (Jammu and Kashmir) , is under challenge. In the impugned judgment the High Court has quashed the proceeding under section 145 Cr. P. C. holding, inter alia, that initiation of the proceeding under section 145 Cr. P. C. during pendency of the civil suit between the parties in which the question of possession is involved amounts to an abuse of the process of court; and that the learned magistrate has not stated the grounds in support of his order. The dispute raised in the case relates to possession of land measuring 2 kanals, 12 marla comprising khasra no. 398, khewat no. 8, khata no. 9 min. situated at Rakh Raipur, Tehsil Jammu. This property has been the subject matter of protracted litigations both in civil and criminal proceedings between the parties. As the position stands at present, respondent nos. 1 and 2 herein filed a suit on 24/4/2000 for a decree of permanent injunction prohibiting the appellant from interfering with their possession. The suit is pending in the court of the 1st subordinate judge, senior division, Jammu. In the said suit on the application filed by the plaintiff for interim injunction, the trial court by ad-interim order dated 24/4/2000 restrained the defendants from interfering with the possession of the plaintiffs over the suit land till 16th of may, 2000. On appeal, said injunction order was modified to an order of status-quo on the date of institution of suit by order dated 15/5/2000 of the 1st additional district judge, Jammu.
(3.)Considering the petition filed by the appellant under section 145 Code of Criminal Procedure, 1908 learned magistrate passed a preliminary order on 26/5/2000 initiating the proceeding. On that date the learned magistrate also passed an order attaching the property and appointing the SDPO, Gandhi Nagar, Jammu, to remain incharge of the property. In compliance with the said order, the SDPO took over the possession of the property on 27th may,2000.