Find a Lawyer

Criminal Miscellaneous No. 1 of 1988, decided on 14th June, 1988.

---S. 561-A--Quashing of proceedings--"Process of the Court"-Meaning--"Process of the Court" as used in S.561-A, Cr.P.C., was a general wore meaning, in effect, anything done by a Court of competent jurisdiction, while exercising its jurisdiction and authority conferred by law and when powers vested in Court were not used in the way required to be used by law or not to promote ends of justice, process of Court was said to be abused.

---S. 145--Dispute about possession of immovable property--When an action was pending in Civil Court about certain immovable property and said Court by an order regulated possession of it, Criminal Court would not initiate proceedings under S.145, Cr.P.C. touching that property because object of action to be taken by an executive authority was to stop disturbance of breach of peace which already stood achieved through an action taken by Civil Court.

---S. 145--Jurisdiction under S.145, Cr.P.C., exercise of--Object-Sole object of exercising jurisdiction under S.145. Cr.P.C. was to prevent parties to fight over possession of immovable property and to indulge into quarrel to shed blood and disturb peace--Decision of title of parties over disputed property was not intended by S. 145, Cr. P.C.

---S. 561-A--Powers given to High Court under S.561-A, Cr.P.C., held, were not intended to stop Courts of competent jurisdiction to proceed with trial of cases, yet these powers were required to be used to come in aid to persons against whom frivolous proceedings had been launched to harass them for sake of pressurising them to yield to demands to which they were not otherwise ready to concede

---Ss. 145 & 561-A--Quashing of proceedings--Respondent fully alive that an application was filed by petitioner for partition of land and same was pending in competent Court and said Court had passed an order preventing him to alienate land and to disturb its status quo-Respondent had also moved an application before said Court for cancellation of stay order and had made an admission to the effect. that petitioner was in possession of one-half of land--Respondent, however, withheld these facts and moved an application for initiating proceedings against petitioner under S.145, Cr.P.C. without disclosing aforesaid facts to Magistrate and got issued an order in exercise of power under 5.145, Cr.P.C. and caused attachment of property against petitioner--Held, continuation of proceedings under S.145, Cr.P.C. against petitioner was a clear abuse of process of Court--Proceedings quashed in circumstances.

P L D 1969 Lah, 74 ref.

--- "Process of the Court"Meaning of.

Lal Hussain for Petitioner.

M.R. Dar for Respondent.

This petition, as envisaged by section 561-A, Cr.P.C. has been moved for quashment of proceedings taken by R.A. /M.I.C., Mirpur, against the petitioner under section 145, Cr.P.C. when he was informed by the respondent through an application dated 12th April, 1987 about alleged dispute over possession of land comprising survey numbers situate in village Sarhang, Tehsil Mirpur, fully mentioned in the application dated 2nd March, 1987 filed before him, and likelihood of breach of peace.

2. The case of the petitioner precisely is that land which is the subject-matter of the present petition, is jointly owned by the petitioner and the respondent who are real brothers, and the respondent sold specific field numbers in favour of various persons and is continuing to sell more land, therefore, to safeguard his title and interest in the land, he filed an application for partition of it in the Court of Revenue Assistant Mirpur and when the application was pending, the respondent moved an application as envisaged by section 145, Criminal Procedure Code, before the same officer in the capacity of Magistrate 1st Class and falsely alleged that he was in possession of whole of the land and the petitioner (herein) in order to cause his dispossession by use of force was taking law into his hands, thus there was likelihood of breach of peace and the learned Magistrate without sufficient reason initiated the proceedings, caused the attachment of the land and even when through an application he was requested to withdraw the order whereby the proceedings were taken and the land was attached, his prayer was refused.

3. The proceedings under section 145, Cr.P.C. can be initiated when a Magistrate Ist Class is apprised of the dispute over possession of land and likelihood of breach of peace and there are reasons for his satisfaction that the information was, prima facie, correct, it was argued by the petitioner"s Counsel. Here in this case, the position is exactly otherwise; the copy of survey register appended with the complaint filed by the respondents shows that the land is in joint possession of the parties, it was stressed.

4. The application for partition of the land was pending in the Court of RA , Mirpur and the respondent had moved an application for recalling the order passed by RA. Mirpur whereby he was refrained from alienating any more land but dishonestly and with a mala fide intention, he withheld this fact from the Magistrate and got proceedings under section 145. Cr. P.C. initiated for the sake of harassing the petitioner, thus caused the abuse of the powers of the Court, it was argued by the petitioner"s Counsel.

5. The learned Counsel for the respondent repudiated the stand taken by the petitioner"s Counsel and after having made reference to the application for partition of the land, pointed out that possession of the respondent over the major portion of land and that the parties are at dispute, is admitted by the petitioner and this fact is sufficient to show that the R . A . /M. I . C . , Mirpur was justified to initiate proceedings against the petitioner as contemplated by section 145, Cr.P.C. Besides this, the trial Magistrate held preliminary enquiry, recorded the statements of two witnesses and examined the respondent also. This exercise shows that the Magistrate rightly exercised the jurisdiction vested in him and there is no justification on the part of the petitioner to say that the process of the Court was abused.

6. When a Court of competent jurisdiction, in order to prevent breach of peace and bloodshed and to discharge the obligations of the office, has proceeded with the case, the extraordinary powers of the High Court as envisaged by section 561-A. Cr.P.C. cannot be exercised for quashment of the proceedings taken by the trial Magistrate, it was stressed by the learned Counsel for the respondent and an authority reported in P L D 1969 Lahore 74 was also cited in support of the contention.

7. The fact that the land is jointly owned by the parties and the proceedings for partition of it are pending in the Court of RA. Mirpur, who after prescribing the mode of partition, has directed his subordinates to submit proposal of partition, is not disputed by the parties.

8. The point at dispute is as to whether the initiating of the proceedings by Revenue Assistant M. I. C. , Mirpur under section 145, Cr.P.C. was justified and the process of the Court had not been abused. The "process of the Court" as used under section 561-A, Cr.P.C, is a general word meaning, in effect, any thing done by a Court of competent jurisdiction, while exercising its jurisdiction and authority conferred by law and when the powers vested in the Court are not used in the way, those are required to be used, by law or not to promote the ends of justice, the process of the Court is said to be abused.

9. The grievance of the petitioner, here in this case is that the respondent being fully alive to the situation that an application for partition of the land was pending in the competent Court and the said Court had passed an order preventing him to alienate the land and to disturb its status quo and in spite of the fact that he had moved an application before the said Court for cancellation of the stay order and had made an admission to the effect that the petitioner was in possession of one-half of the land, withheld these facts from the Magistrate at the time of submission of the application moved for initiating the proceedings against the petitioner under section 145, Cr.P.C. thus caused the Magistrate to abuse of the process of the Court.

10. It is by now settled that when an action is pending in a civil Court about certain immovable property and the said Court, by an order has regulated the possession of it, the criminal Court shall not initiate the proceedings under section 145, Cr. P.C. touching that property because the object of action to be taken by an executive authority is to stop disturbance of the breach of the peace which already stood achieved through an action taken by the Civil Court.

11. In the light of the admitted facts that at the time the respondent moved an application for action to be taken under section 145, Cr.P.C. the application for partition of the land filed by the petitioner in the Court of Revenue Assistant M.I.C., Mirpur was pending and a stay order preventing the respondent to disturb the status quo had been issued and that the respondent had submitted an application for recalling the stay order and that he did not disclose these facts to the Magistrate, it has to be seen as to whether the withholding of these facts is sufficient to assume that the respondent caused the Magistrate to pass an order which amounts to abuse of the process of the Court and which he would not have passed if he would have been in know of these facts.

12. The sole object of exercising the jurisdiction under section 145, Cr.P.C. is to prevent the parties to fight over possession of immovable property and to indulge into quarrel to shed the blood and disturb the peace. The decision of title of the parties over that property is not intended as is envisaged by this law.

13. As the duty of the Magistrate while exercising executive powers under Section 145, Cr.P.C. is to maintain law and order and see that within the locality of his jurisdiction the public peace is not disturbed by fighting over possession of land and to discharge this duty, the legislature has conferred on the Magistrate the powers as are envisaged by Section 145, Cr.P.C. and if the Revenue Assistant M.I.C. would have known at the time of passing of the preliminary order under Section 145, Cr.P.C. that an application for partition of the land is pending on his file and he has already issued the stay order, preventing the other party to disturb the status quo, I believe, he would have felt that there was no likelihood of breach of the peace and he would not have exercised jurisdiction under Section 145, Cr. P.C.

14. It is correct that the powers given to the High Court under Section 561-A, Cr.P.C. are not intended to stop the Courts of competent jurisdiction to proceed with the trial of the cases, yet the powers are required to be used to come in aid of the persons against whom frivolous and vexatious proceedings have been launched to harass them for the sake of pressurising them to yield to the demands to which they are not otherwise ready to concede.

15. After examination of the record of the partition proceedings, the proceedings initiated under section 145, Cr.P.C., the copy of survey register for "kharif" 1986 and the application moved by the respondent for setting aside the stay order passed by the Revenue Assistant where the respondent has admitted that the petitioner is in possession of one-half of the land in dispute, I think, that the respondent in fact did not apprehend that the petitioner shall dislodge him from the land, in his possession by use of force and there was likelihood of breach of the peace but his object to move the criminal Court was that the land in possession of the petitioner may be attached and he may be deprived of the produce of the land so that he may starve lest he yields to the demands of the respondent. The Revenue Assistant M.I.C. Mirpur failed to take notice of the entries of the copy of survey register filled along with the application where the petitioner was shown to be in possession of the land to the extent of one-half of the share and initiated proceedings against the petitioner and caused attachment of the land.

16. In view of the facts stated in the earlier part of this order the continuance of the proceeding under Section 145, Cr.P.C. I think is clear abuse of the process of the Court hence I hereby order that the proceedings stared by the Revenue Assistant/M.I.C. Mirpur against the petitioner under section 145, Cr.P.C. for the land in dispute stand quashed.

M.Y.H./344/H.A. Proceedings quashed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.