Ghulam Darzi, Nabir Darzi vs State

This application in revision by Ghulam Darzi and Nabir Darzi against whom an order has been passed by the City Magistrate of Srinagar under

section 145 of the Code of Criminal Procedure. The order is entirely wrong as it will be shown presently. The question raised on behalf of the

complainantrespondent is that this Court has no power under the provisions of section 406 Criminal Procedure Code to send for the record of

proceedings under Chapter XII i.e., under section 145 of the Code. The Court, however has general power of superintendence and control over

all the Courts in the State under clause 11 of Order No. 1 of High Court Constitution and even if power is not granted to it under the provisions of

section 435 Criminal Procedure Code it has authority to examine proceedings of subordinate courts under the plenary jurisdiction the High Court

has over all subordinated courts under the Charter granted by His Highness the Maharaja Bahadur. As the matter has come up before me I

consider myself entitled to examine whether the proceedings were correct nor not. The City Magistrate has not understood the provisions of

section 145. That section begins ""whenever a District Magistrate, Subdivisional Magistrate of Magistrate of the first class is satisfied from a police

report other information that a dispute likely to cause a breach of the peace concerning land exists"", then he can take certain action. There is no

certificate at all by the City Magistrate to his satisfaction that a dispute likely to cause a breach of the peace did exist. He has prepared no other as

required by section 145. Proceedings under that section ought to begin by the Court writing out or dictating an order giving reasons for his

satisfaction that the breach of pace is apprehended and only then he can call upon the opposite party to attend his Court in person within a certain

time and put in a written statement. Th3e Magistrate did nothing of the sort and merely treated the matter as if a complaint of trespass had been

made in his Court and has issued notices to the opposite party to answer the charge. This defect in the procedure and want of knowledge by the

Magistrate have entirely vitiated the proceedings. I set aside the proceedings and defects that the order under section 145 be discharged.