Excelsior Correspondent
Srinagar, July 24: High Court has set aside the order of trial court initiating criminal proceedings in a civil dispute and recorded that the order impugned is not in consonance with the provisions of Section 145 (breach of peace) of Code of Criminal Procedure as such is illegal and bad in law.
The order of the Additional District Magistrate, Rajouri passed on 01.08.2018 in application under Section 145(1) CrPC has been called in question by advocate Z A Mughal on the ground that the proceedings have been initiated only to deprive the petitioners from enjoyment of their property in their possession.
Advocate Mughal submitted before Justice V C Koul that the parties have a civil dispute between themselves in respect of which civil suits are pending before civil courts and the order passed is the abuse of jurisdiction and the order impugned is illegal.
He added that initiation of criminal proceedings by the trial court under Section 145 CrPC cannot be justified when a civil dispute is pending before the parties regarding the subject matter in question.
Justice Koul allowed the petition and set aside the order passed under Section 145 CrPC by the trial court. Court said the section provides for the procedure where dispute concerning land etc is likely to cause breach of peace and as per the section when a Magistrate is satisfied from the police report or other information that there is a dispute which is likely to cause breach of peace concerning any land, he has to make an order in writing and while making such order in writing, he has to state the grounds of his being so satisfied.
After doing so, court said, the trial court has to require the parties concerned in such dispute to attend his court in person or by pleader and to put in written statement of their respective claims as respect the fact of actual possession of subject of dispute and also to produce such documents and evidence by way of affidavits and other evidence in support of their claims.
Court added that the order impugned passed by the trial court would reveal that a notice has been issued to the respondent by the Magistrate without recording any such satisfaction and before passing the order impugned, the Magistrate has nowhere recorded such satisfaction nor any such reason as required under provisions of Section 145 CrPC has been recorded.
“Jurisdiction can be assumed by the Magistrate for proceedings under said section only after recording such satisfaction and after giving such reasons where-after an order of attachment can be passed by the Magistrate under proviso (3) of sub-section (4) of Section 145 CrPC”, reads the judgment.
Court concluded that the order impugned not being in consonance with the provisions of Section 145 CrPC is illegal and bad in law and for these reasons allowed the revision petition and set aside the order impugned.
Trending Now
E-Paper
Follow our WhatsApp channel