Mohd. Rafiq Mir vs Ghulam Mustafa Khan

S.M. Rizvi, J.—This is a motion for the admission of a criminal revision directed against the order dt. 9-12-1986 passed by the learned

Judicial Magistrate First Class (Sub Registrar), Srinagar, rejecting an application of the petitioner for summoning of some witnesses on his behalf in

the proceedings taken u/s 145 of the Cr.P.C., and also against the order dt 26-12-1986 passed by the learned Sessions Judge, Srinagar,

dismissing the revision petition filed by the petitioner against the order of the learned Magistrate as mentioned above.

It appears, that on the application of the petitioner proceedings u/s 145 Cr.P.C. have been taken by the learned Enquiry Magistrate against the

respondent in respect of a shop belonging to the Municipality, Srinagar. The said shop was somewhere in, 1971, or even before that allotted by

the Srinagar Municipality to one Sona Ullah Bhat, who entered into partnership with the petitioner for running some business in that shop

somewhere in, 1972, the said partnership got dissolved. The petitioner claims himself to be in possession of the said shop since then. On the other

hand, the respondent also claims to be in possession of the said shop since then The parties have filed the relevant documents as also affidavits of

the witnesses in the court of the learned Enquiry Magistrate and the case was ripe for final hearing. In the meanwhile, the petitioner filed as

application for summoning of some witnesses which was rejected by the learned Magistrate by virtue of the impugned order. The revision against

that order also came to be rejected by the learned Sessions Judge. Hence, this revision.

The record was examined and the learned Counsel for the parties were also heard on the admission of this revision.

Mr. Jan took a preliminary objection to the maintainability of the revision on the ground that the order impugned being an interlocutory order, it

could not be revised. He had taken the same objection before the learned Sessions Judge, where it prevailed. The learned Sessions Judge held the

order impugned as interlocutory, and, therefore, not revisable.

Mr. Manzoor on the other hand argued that a right of the petitioner was finally decided in the impugned order and, therefore, it was not an

interlocutory order and was revisable.

The character of the order impugned should not detain us at this stage. The only point to be determined in this revision is the legality or otherwise

of the impugned order passed by the learned Magistrate. The petitioner wants to examine some witnesses over and above the documents and

affidavits filed by him, just to prove as to whom Sona Ullah Bhat, the original allottee of the shop, had given its possession in the year, 1972. The

factum of possession of such distant past in the proceedings u/s 145 Cr.P.C. is a remote question, which may not be of much relevance before the

learned Enquiry Magistrate. He is only called upon to determine as to who was in the actual physical possession of the shop, whether lawful or

otherwise, on the date of the passing of the preliminary order or two months before the said order was passed. He has nothing to do with the title

of the shop or the partnership matter, which too relate to the year 1972. Moreover, a party cannot call a witness as a matter of right in the

proceedings u/s 145 Cr.P.C. It is the discretion of the Magistrate to call a witness on the application of such party if the Magistrate thinks it fit. The

Magistrate is required to exercise his discretion judicially and not arbitrarily, while deciding whether such application should be accepted or not. He

is not bound to call such witnesses if he thinks that it is not necessary for the determination of the question of possession on the date of the passing

of the preliminary order or two months before passing such order. In the instant case, the learned Magistrate appears to have exercised his

discretion judicially and not arbitrarily, after keeping in view the record brought on the file by the parties. He has not committed any illegality or

impropriety while passing the order impugned. In these circumstances of the case, the petitioner has failed to make out a case for the admission of

this revision, which is hereby dismissed in. limine. The record shall be remitted to the Enquiry Magistrate immediately, who is directed to hear the

parties finally and dispose of the case within two weeks positively. The parties are hereby directed to appear before him on 17-3-1987. The

revision file be consigned to records.