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Judgment
I have heard Mr. Tantray at length,
The contention of the petitioners in nutshell is that proceedings under section 145 Cr.P.C. came to be initiated way back in the year 1982
regarding property situate at Aqilmir, Khanyar, which property stands notified as evacuee property. Petitioners claim to be in possession of 3/4th
of the property and the respondent in possession of 1/4th share. Proceedings were initiated under section 145 Cr.P.C. on the pretext that there
was apprehension of breach of peace. At the relevant time, when proceedings seem to have been drafted and initiated by the court, the Evacue
Department did not put in their appearance though as per law the notice was issued and the proceedings were initiated, the orders are being
passed in rem only and not in personium as anybody who has any right can come and put in his rights through documents, affidavits in support of
his contentions. However, the Evacuee Department did not find it proper or were not advised to approach the trial Magistrate at the relevant time.
The records reveal that the trial Magistrate had concluded the proceedings and referred the matter under section 146 Cr.P.C. to a civil court of
competent jurisdiction. I am told that the civil Court has also returned its finding. However, the trial Magistrate has not till date passed final orders
as is envisaged under section 145 Cr.P.C. in light of section 146 of Cr.P.C. and the statute, but the Evacuee Department had at one stage moved
an application in the court below for being arrayed as a party to the proceedings. The learned Magistrate while hearing the application had also
shown his anxiety that the Evacuee department has come at a very late stage for being arrayed as a party, when already the matter has been
referred to a civil court, who has also returned its finding against the Evacuee Department as per observations made by the learned trial Magistrate.
This order was out in challenge in revision and the revisional court had returned a finding that the order being an interlocutory order is not revisable
and obviously rejected the revision petition.
The petitioner have come under section 561A Cr.P.C. by moving the present petition on the ground that there has been miscarriage of justice
and misuse of powers of the court by taking recourse to the proceedings under Section 145 Cr.P.C.
Petitioners have assailed the proceedings initiated under section 145 Cr.P.C. way back in the year 1982 before the trial Magistrate on number
of counts. Mr. Tantray projects that learned Magistrate has relied upon affidavits which have not been sworn before the Judicial Magistrate, but
before the Oath Commissioner and on that count alone, he wants that these proceedings should be quashed, because the law on this point is
settled that the affidavits which are to be relied upon by the Magistrate in these proceeding must be sworn before the Judicial Magistrate and not
before any other authority. Since the affidavits in these proceedings have not been sworn before the Magistrate, so the conclusion arrived at by the
Magistrate are not to be taken and cannot be taken authentic and thus the proceedings are vitiated abinitio.
Mr. Tantray wants to project the matter at the fag end of the proceedings. He infect wants to assail the finding of the civil court which has been
returned under section 146 Cr.P.C., which to his dismay cannot be done either under the revisional powers or appellate powers as per the very
provisions of the Statute. On the other hand, Mr. Tantray under the grab of these proceedings tries to see that the proceedings which have been
undertaken and initiated for the last more than 15 years are being vitiated only on the count that there has not been substantial compliance of the
procedure made in this behalf. I do find that the Magistrate has made substantial compliance in these proceedings. There may be irregularity here
and there, but those are not of such nature which will tent amount to vitiating of proceedings.
The contention raised by Mr. Tantray that the property in dispute is an evacuee property is immune from attachment is also not well founded as
because the attachment, of which reference has been made pertains to civil attachment in pursuance of execution of decree and not regarding
attachment order passed by the Magistrate under Section 145 Cr.P.C., in case there is apprehension of breach of peace in respect of nature of the
property.
So the most that can be done is that there is no force in these proceedings under Section 561A Cr.P.C. However, the petitioners, if advised
have a legal remedy when the Magistrate who is holding the proceedings under section 145 Cr.P.C. draws final orders as the civil court has
already returned its finding into consideration. The present petition under Section 561A Cr.P.C. is accordingly dismissed. The file be consigned to
records.