Ahmed Dar vs Mugli

In this application u/s 561A of the Cr. P.C. order of this Court dt. 1841985 passed in Criminal Petition No. 40 of 1984 is sought to be

quashed.

Notice was issued to the other side and the record of Courts below as also Cr. Petition No. 40/84 was sent for. Learned counsel for the parties

were heard in detail.

In order to appreciate the submissions of the learned counsel for the parties, it is necessary to make brief mention of the facts here.

On 1721965, Judicial Magistrate, Ist. Addl. Munsiff, Srinagar, in proceedings u/s 145 Cr. P.C. had directed the parties to get the dispute

settled in a civil Court and in the meantime he ordered the property in dispute to remain under attachment. Collector, Srinagar was directed to give

the property on Superdnama. Against this order an application u/s 561A, Cr. P.C., was moved by one Mst. Mugli respondent herein. That

application was allowed and it was ordered that the Magistrate could not have kept the property under attachment and appointed a Superdar for

the same. He had not proceeded in the matter u/s 146 Cr. P.C. Therefore, order of attachment was held to be bad and the property was ordered

to be restored to the respdt. herein. The petitioners herein though served in that petition had not appeared. Therefore that petition was decided in

their absence.

In the present petition the petitioners herein who were respondents in Cr. Petition No. 40/84 had brought some documents on the record and

on the basis of those documents it is stated that the respondent herein (petitioner in Cr. Petition No. 40/84) had by suppression of material facts

obtained the order from this Court. It is stated that as a matter of fact property in dispute was not under attachment. It was released from

attachment and proceedings u/s 145 Cr. P.C. in respect of the said property were still pending before a Judicial Magistrate which were brought by

the respondents herein.

Reliance is placed on a Full Bench decision of this Court reported in 1981 Srinagar LJ 446 : (1982 Cri LJ 297) for the proposition that if the

order of the High Court is without jurisdiction or nullity, it can be quashed u/s 561A of the Cr. P.C.

From the perusal of the record it appears that the petitioners herein and the Superdar had entered into a compromise before the learned Chief

Judicial Magistrate. In support of the compromise their statements were recorded on 22111982. On 25111982 one Wali Mohd Shah, Advocate

for the petitioners got his statement recorded by the Chief Judicial Magistrate. In his statement he submitted that he withdraws the application for

restoration of possession of the disputed land and prayed that the application be dismissed. On the same day the learned Chief Judicial Magistrate

made the following order on this application :

Counsel for applicant present. The counsel has withdrawn application vide his application and statement on record. He does not want to follow

and prosecute the application. Accordingly the application is dismissed. Consign to records after due completion.

The petitioner herein as also the Superdar had also submitted that the application be dismissed. Therefore the learned Chief Judicial Magistrate

records the order mentioned above. Respondent herein was not made a party to the Miscellaneous Petition No. 37 of 1982 before the Chief

Judicial Magistrate by the petitioners herein and by the Superdar. It was disposed of as dismissed and consigned to record at the back of the

respondent herein.

On 5111983 one more application came to be filed by the respondent herein before the Judicial Magistrate Second Addl. Munsiff, Srinagar,

with the prayer that the Superdar be summoned and yield of the property attached be got deposited in the Treasury and the Superdar be

dispossessed and some other person be appointed as a Superdar till the matter was decided. The Second Addl. Munsiff Judicial Magistrate

without application of mind treated this application as application u/s 145 Cr. P.C., and proceeded to draw up a preliminary order though

respondent herein had not made a prayer for drawing up a preliminary order under S. 145(1) of the Cr. P.C. Till date these proceedings are also

pending before the Second Addl. Munsiff Judicial Magistrate Srinagar. However, the Superdar had paid Rs. 5,000/ to the petitioners herein and

stated that he had handed over the possession of the property to the petitioners. This was a private negotiation which was not certified by any

Judicial Magistrate.

That attachment order ordered by Ist. Addl. Munsiff Judicial Magistrate, Srinagar on 1721965 had not been vacated as yet. Even Chief

Judicial Magistrate dealing with the Miscellaneous Application No. 37/82 and compromise of the parties has not passed any order with regard to

release of the attached property. He has only dismissed the application with the observation that no action is warranted in view of the statements

made by the parties. So under law attachment of the property in terms of orders of Ist. Addl. Munsiff Judicial Magistrate remained in force till Cr.

Petition No. 40/84 was decided by this Court. By private negotiations petitioners herein and the superdar could not have modified or vacated the

attachment order and taken possession of the disputed land. As to whether attachment order was right or wrong is besides the point. The property

had remained under attachment under the orders of the Judicial Magistrate and the Judicial Magistrate alone could release the property from

attachment. One party in collusion with the Superdar at the back of the other could not obtain the possession of the property as also its yield from

the Superdar. Had the present respondent been associated with the compromise then the matter was different but negotiations between the

petitioners herein and the superdar were taken at the back of the respondent herein. Therefore, they are not binding on her. In the second place no

competent Court had released the property from attachment but the application for releasing the property was dismissed. Therefore, Mr. Sadiq's

contention that order passed in Cr. Petition No. 40/84 under reference is without jurisdiction and nullity is misconceived.

This Court while deciding Cr. Petition No. 40/84 exercised its powers in accordance with the procedure established by law. If the property

had remained in attachment for 19 years and there was no proceeding pending in respect of the said property as contemplated u/s 146 Cr. P.C.,

then the attachment order itself had become bad in law and was abuse of the process of the trial Court. The trial Court at that stage had also

attached the property in violation of the provisions of law. This Court while deciding Cr. Petition No. 40/84 had corrected that mistake and set the

record straight. That jurisdiction was vested in this Court and the order was not without jurisdiction.

That brings me to the proceedings pending before the Second Addl. Munsiff Judicial Magistrate, Srinagar. Now those proceedings are also

before this Court. Therefore, this Court can deal with those proceedings also. In view of the decision in Cr. Petition No. 40/84 proceedings before

the Second Addl. Munsiff Judicial Magistrate have become infructuous. Even otherwise the said Judicial Magistrate has committed a serious error

of law by initiating proceedings u/s 145 Cr. P.C. and by framing preliminary order under subsec. (1) in respect of attached property when there

was no prayer in this regard in the application. The application was made before him only to summon the Superdar and recover yield of attached

property from him and to dispossess the Superdar from the attached property. This application was for a different purpose but the Judicial

Magistrate Second Addl. Munsiff had without application of mind proceeded to draw up a preliminary order u/s 145 (1) of the Cr. P.C. These

proceedings before the Judicial Magistrate Second Addl. Munsiff are sheer abuse of the process of law and process of Court. I say so because I

have examined the contents of the application as also the order passed by the Judicial Magistrate IInd Addl. Munsiff on 5111983. In view of the

order dt. 1841985 passed in Cr. Petition No. 40/84 proceedings before Judicial Magistrate Second Addl. Munsiff cannot survive. Accordingly the

proceedings before the Judicial Magistrate Second Addl. Munsiff initiated on 5111983 at the instance of the respondent in respect of the disputed

property which is also the subject matter of this petition, are quashed as frivolous. 13. The application moved by Mr. Sadiq has no merit because

the order passed on 1841985 in Cr. Petition No. 40/84 is perfectly legal and justified in the circumstances of the case. The said order cannot be

said to be without jurisdiction or nullity. The application is accordingly dismissed.