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Criminal Revision Application No. 17 of 1963, decided on 24th April 1963.

S. 145(1)‑Magis trate, before issuing process, to record preliminary order stating grounds of his being satisfied that dispute likely to cause breach of peace exists between parties‑Preliminary order reading merely "issue notice to other party"‑Order, held, did not conform to requirement of law.

S. 145(1) & (4) Petitioner not found to be in possession of property within two months before passing of preliminary order‑Proceedings under section not maintainable.

Debendra Chandra Sarkar v. Khodaram Sangma and others P L D 1951 Dacca 59 ; Muhammad Amir v. Abdul Hamid Khan P L D 1955 Pesh. 31 and Bindhvachal Prasad Verma v. Madho Singh and others A I R 1946 Pat. 330 ref.

A. A. Bhatti for Petitioner.

Respondent in person.

Sahibzada Sahibyar Khan, Advocate, filed an application under section 145/107, Cr. P. C., in the Court of Section 30 Magistrate, Khanpur, on the 9th of August 1961. No preliminary order was passed till the 16th January 1963. The preliminary order reads as follows :‑

"Issue notice to other party. (Illegible). 31‑1‑1963."

The case came up before the Magistrate on the 31st of January 1963 and it was adjourned for the service of the respondents on several dates. On the 7th of March 1963, Sahibzada Sahibyar Khan, put in an application praying for the appointment of a receiver. The learned Magistrate, thereupon, passed an order on the 20th of March 1963, appointing a receiver. Muhammad Siddique, who is one of the respondents in section 145, Cr. P. C. proceedings, has filed this petition under sections 439 and 561‑A of the Criminal Procedure Code, praying for the quashment of the proceedings.

2. The learned counsel for the petitioner has urged that under section 145(1), Cr. P. C., it is incumbent upon the Magistrate to pass a preliminary order stating the grounds of his being satisfied that a dispute likely to cause breach of peace existed between the parties, and then to require the parties" concerned in such dispute to attend his Court in person or by Pleader within a time fixed by him, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Undoubtedly, the order passed by the learned Magistrate on 16th of January 1963, does not conform to the requirement of law. The second contention of the learned counsel is that the preliminary order was passed as late as the 16th of January 1963. Admittedly, the petitioner and others have been in possession of the property in dispute long before two months of the passing of the preliminary order and in such a case, a Criminal Court is not competent to pass any final orders. The learned counsel has relied on Debendra Chandra Sarkar v. Khodaram Sangmz and others (P L D 1951 Dacca 59), Muhammad Amir v. Abdul Hamid Khan (P L D 1955 Pesh. 31) and Bindhvachal Prasad Verma v. Madho Singh and others (A I R 1946 Pat. 330). It has been remarked in the Dacca ruling as follows :‑

"Proceedings under section 145, Cr. P. C. were started on 3rd of May 1948 but the petition having been referred to the police, order under section 145 (1) was only passed on 30th of March 1949:

Held, that in construing the proviso to section 145 (4) the Court must follow the wording of the proviso literally, and if the party is found to have been forcibly and wrongfully dis possessed on a date outside two months next before the date of the order, the proceedings cannot be maintained."

The same is the view taken by the Peshawar Judicial Commis sioner's Court, in this ruling several authorities of different Courts had been cited. In the present case, the property in dispute was admittedly in possession of certain lessees and the petitioner did not in his petition clearly mention the date of his possession or dispossession. The matter is being contested in the Revenue Courts as well as in the Civil Courts, which I consider, in the circumstances of the case, is the proper forum. The present proceedings under section 145, Cr. P. C. are misconceived and are, therefore, quashed.

K. B. A. Proceedings quashed.

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