JABAR MAGREY Vs. GAFFAR MAGREY

JUDGEMENT

(1.) ON 12.6.1984 Tehsildar Executive Magistrate, Kangan purporting to act under Section 145 Cr.Pr. Code initiated proceedings in respect of the disputed land under that section. The disputed land was attached and ordered to be kept with some impartial person on Superdnama. The Executive Magistrate seems to have exercised jurisdiction on the basis of a report made by the concerned Police to him. A revision against this order was filed by the non-applicants Jabbar Magray and others before the Sessions Judge, Srinagar, who transferred the same to Second Additional Sessions Judge, Srinagar. The applicants filed an application under Section 561 A Cr.P. Code in this court against the order of the learned Additional Sessions Judge because the said court had stayed the operation of the attachment order passed by the Executive Magistrate. The application under Section 561-A Cr. P. Code was admitted and the revision petition pending before the second Addl. Sessions Judge, Srinagar, was summoned for examination and disposal. This Judgment will therefore, dispose of the revision petition filed against the order of the Executive magistrate dated 12.6.1985 whereby the property in dispute has been attached as also petition under Section 561-A Cr. P. Code pending in this court.

(2.) DISPOSAL of petition under Section 561-A Cr.P. Code depends on the judgment that may be passed in the revision petition filed by Jabar Magrey against the order of attachment passed by the Executive Magistrate on 12.6.1985. Therefore, it is necessary to decide the revision petition first.

(3.) LEARNED counsel for the revision petitioner and respondent in petition under Section 561-A Cr. P. Code, hereinafter to be referred to as revision petition has challenged this order on the ground that it was not an order under Section 145(1) of the Code of Criminal Procedure but was an order of attachment of the property under Sub-section (4) of Section 145 Cr.P. Code. His submission is that unless there was a valid preliminary order under Section 145(1) of the Cr.P. Code, attachment order Sub-section (4) of the said section cannot be passed. Mr. Raina's submission is that defect in the order pointed out by the learned counsel for the revision petitioner is defect of form and not a defect of substance. According to him the Magistrate assumed satisfaction on the information of the police report received by him about the existence or likelihood of breach of peace and after assuming satisfaction he could take cognizance under Section 145 Cr. P. Code. Non-mention of the disputed property or non-mention of a direction to the parties to file their affidavits and documents with regard to actual fact of possession and affixing a copy of the order at a conspicuous place are only procedural defects which could not vitiate the order.