Bashir Ahmad Ganie vs Farooq Ahmad Rather And Others on 25 April, 2022

[Cites 13, Cited by 1]

Jammu & Kashmir High Court - Srinagar Bench

Bashir Ahmad Ganie vs Farooq Ahmad Rather And Others on 25 April, 2022

1. The petitioner has challenged order dated 17.03.2022 passed by learned Additional Sessions Judge Anantnag in a revision petition filed against order dated 24.10.2019 passed by Sub Divisional Magistrate Dooru. Challenge has also been thrown to order dated 24.09.2019 passed by the Executive Magistrate 1st Class (Tehsildar) Qazigund, whereby the disputed land and crops standing thereon have been directed to be attached.

2. It appears that respondent No.1 had filed a proceeding under Section 145 Cr.P.C against the petitioner in respect of land measuring 7 kanals under survey No.535 min and land measuring 3 kanals and 14 marlas under survey No.465 min, situated at village Kurigam Tehsil Qazigund. Learned Executive Magistrate 1st Class (Tehsildar) Qazigund has passed order dated 24.09.2019 in the said proceedings, observing that in order to avoid breach of peace on spot, the aforesaid land alongwith crops of kharief 2019 be attached and Lumberdar and Chowkidar concerned have been directed to take SARVEEDA NISSAR 2022.04.28 01:32 I attest to the accuracy and integrity of this document 2 CRM(M) No.125/2022 CrlM No.(417/2022) possession of the disputed land and to hold the same under attachment. It appears that the Sub Divisional Magistrate Dooru has vide his communication dated 24.10.2019 quashed the aforesaid order of the Executive Magistrate 1st Class (Tehsildar) Qazigund and directed him to handover the crop to the petitioner herein. The aforesaid order of the Sub Divisional Magistrate Dooru came to be challenged by the respondents herein by way of revision petition before the learned Additional Sessions Judge Anantnag. The learned Additional Sessions Judge after hearing the parties accepted the revision petition and set aside the order dated 24.10.2019 passed by learned Sub Divisional Magistrate Dooru.

3. I have heard learned counsel for the petitioner and perused the impugned order and the documents attached to the petition.

4. It has been contended by learned counsel for the petitioner that the order passed by the Executive Magistrate 1st Class (Tehsildar) Qazigund on 24.09.2019 is illegal and as such the learned Additional Sessions Judge should have exercised his powers under Section 435 of J&K Cr.PC and examined its correctness, legality and propriety but instead of doing so, the learned Additional Sessions Judge has only examined the legality and propriety of the order of Sub Divisional Magistrate Dooru, which according to the learned counsel is not a proper course.

5. In order to understand the powers of Sub Divisional Magistrate it is necessary to have a look at the relevant provision of J&K CrPC which is applicable to the instant case. Section 6(A) of the J&K SARVEEDA NISSAR 2022.04.28 01:32 I attest to the accuracy and integrity of this document 3 CRM(M) No.125/2022 CrlM No.(417/2022) Cr.PC gives the details relating to Classes of Magistrates. As per this provision the following are the Classes of the Executive Magistrates:-

II. EXECUTIVE MAGISTRATES (1) District Magistrates (2) Addl. District Magistrates (3) Sub-divisional Magistrates (4) Executive Magistrates of the first class (5) Executive Magistrates of the second class (6) Special Executive Magistrates Schedule III clause VI of the J&K CrPC gives the details as regards ordinary powers of a Sub-Divisional Magistrate. It reads as under:-

VI. Ordinary powers of a Sub-Divisional Magistrate- (1) The Ordinary powers of an Executive Magistrate of the first class.

(2) Power to direct warrants to land-holders, Section 78. (3) Power to require security for good behaviour, Section 110 (4) Power to make orders prohibiting repetitions of nuisances, Section 143.

(5) Power to make orders under Section 144. (6) Power to depute Subordinate Executive Magistrate to make local inquiry, Section 148.

(7) Power to issue process for person within local jurisdiction who has committed an offence outside the local jurisdiction\, Section 186.

(8) Power to sell property alleged or suspected to have been stolen etc., Section 524

6. A bare perusal of the aforesaid provisions reveals that a Sub Divisional Magistrate does not have power to examine the legality and propriety of an order passed by an Executive Magistrate of 1st class. In the instant case, the Sub Divisional Magistrate has, vide his communication dated 24.10.2019, quashed the order passed by the Executive Magistrate 1st Class (Tehsildar) Qazigund. Therefore, the aforesaid order of the Sub Divisional Magistrate Dooru is without any jurisdiction. The finding of the learned Additional Sessions SARVEEDA NISSAR 2022.04.28 01:32 I attest to the accuracy and integrity of this document 4 CRM(M) No.125/2022 CrlM No.(417/2022) Judge Anantnag to this effect is in accordance with law and does not call for any interference.

7. So far as the contention of learned counsel for the petitioner that the learned Additional Sessions Judge Anantnag should have also tested the correctness of the finding/order of the Executive Magistrate 1 st Class (Tehsildar) Qazigund, is concerned, the same is without any merit because the revision petition was filed by the respondent challenging the order of the Sub Divisional Magistrate Dooru. The order of the Executive Magistrate 1st Class (Tehsildar) Qazigund was not under challenge in the revision petition before the learned Additional Sessions Judge Anantnag. It is true that a Sessions Judge has suo motu power to exercise the revisional jurisdiction but then it was for the petitioner herein to bring to the notice of learned Sessions Judge any illegality or impropriety by the learned Executive Magistrate 1st Class and to insist upon exercise of revisional jurisdiction by the learned Additional Sessions Judge. At least the petitioner should have filed an application to this effect before the learned Additional Sessions Judge but having not done so, the petitioner is expecting that the learned Additional Sessions Judge would exercise his revisional powers suo motu. The reliance placed by the learned counsel for the petitioner on the judgment of Supreme Court in State of Uttar Pradesh vs. Kailash Nath Agarwal AIR 1973(SC) 2210 is misplaced, as the issue before the Court in the said case was entirely different and on facts also the case is distinguishable.

SARVEEDA NISSAR

2022.04.28 01:32 I attest to the accuracy and integrity of this document 5 CRM(M) No.125/2022

CrlM No.(417/2022)

8. Apart from the above, while passing the impugned order, the learned Additional Sessions Judge, Anantnag has directed the Executive Magistrate 1st Class (Tehsildar) Qazigund to proceed in the matter in accordance with law and liberty has been given to the petitioner to challenge the said order of Executive Magistrate 1 st Class (Tehsildar) Qazigund by filing appropriate proceedings.

9. Section 145(8) of J&K Cr.PC empowers a Magistrate to pass an order of attachment of property in dispute and upon completion of the inquiry he has to make order for disposal of such property. In the instant case the Executive Magistrate 1st Class (Tehsildar) Qazigund, while passing order dated 24.09.2019, has observed that the attachment order shall remain in force until decree or order of competent court determining the rights and claims of parties in dispute is obtained. To this extent, the order of learned Executive Magistrate 1st Class (Tehsildar) Qazigund is required to be modified, as the provision contained in Section 145(8) of J&K Cr.PC envisages an inquiry, whereafter the order has to be made by the Magistrate regarding disposal of the attached property. Thus, the order of attachment passed by the learned Executive Magistrate 1 st Class (Tehsildar) Qazigund, to the extent it has directed that the attachment shall remain in force till rights of the parties are determined by competent court, is not in accordance with law.

10. A Magistrate, while proceeding under Section 145 Cr.PC, has to make an inquiry as to the possession of the property in dispute and decide the question whether and which of the parties was at the date SARVEEDA NISSAR 2022.04.28 01:32 I attest to the accuracy and integrity of this document 6 CRM(M) No.125/2022 CrlM No.(417/2022) of order passed under Section 145(1) of the Cr.PC in possession of the disputed property. The Magistrate is not expected to decide the merits or claims of the parties or right of possession of the subject matter of the dispute. In the order passed by the learned Executive Magistrate 1st Class (Tehsildar) Qazigund, scope for holding an inquiry as regards the question of possession as on date when the proceedings under Section 145 Cr.PC were initiated, seems to have been foreclosed. It is for this reason that the learned Additional Sessions Judge, while passing the impugned order, has directed the Executive Magistrate concerned to proceed in the matter strictly in accordance with law.

11.For the foregoing reasons, the petition lacks merit and is dismissed as such. However, the Executive Magistrate 1st Class (Tehsildar) Qazigund is directed to hold the inquiry as to which of the parties was in possession at the time of initiation of proceedings under Section 145 Cr.PC and thereafter pass orders with regard to the disposal of the property attached.

12. Copies of this order be sent to learned Additional Sessions Judge Anantnag and Executive Magistrate 1st Class (Tehsildar) Qazigund.

(SANJAY DHAR) JUDGE SRINAGAR 25.04.2022 Sarveeda Nissar Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No SARVEEDA NISSAR 2022.04.28 01:32 I attest to the accuracy and integrity of this document

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Jammu & Kashmir High Court - Srinagar Bench