Sr. No. 11 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CRMC No. 474/2014 Amarnath and Ors. …. Appellant(s) Through:- Mr. M. K. Raina, Advocate. V/s Tehsildar Executive Magistrate and Ors. …..Respondent(s) Through:- Mr. Subodh S. Jamwal, Advocate. CORAM : HON’BLE MR. JUSTICERAJESH SEKHRI, JUDGE ORDER 02.06.2025 1. The petitioners have invoked inherent jurisdiction of this Court, in terms of Section 561-A of Code of Criminal Procedure, (Cr.P.C) for quashment of an order dated 31.10.2014passed by learned First Additional Sessions Judge, Jammu [“the Revisional Court”]in a criminal Revision, titled “Raj Hussain v. Amarnath and Ors.”, vide which order dated 17.04.2014, passed by Tehsildar Executive Magistrate, First Class, Jammu [“the trial Court”] in terms of Section 145 Cr.P.C., came to be set aside and it was directed to re-consider the matter and pass the order afresh. 2. Before a closer look at the grounds urged in the memo of petition, it shall be expedient to have an overview of background facts of the case. 3. On 26.06.2013, respondent No. 3- Raj Hussain preferred an application toSHO, Police Station, Gharota, Tehsil and District Jammu 2 statinginter alia that he is owner in possession of land, situateat KoteKalakam and petitioners, who are residing adjacent to his land are trying to forcibly dispossess him and cultivate his land. Preliminary enquiry came to be conducted by the police whereby statements of natives of the village came to be recorded.Pertinently, it came out in the preliminary enquiry that aforesaid land was proprietary land of father of respondent no. 3- Raj Hussain and it were the petitioners who were claiming their right over the said land. However, a recommendation was made to the trial Court for initiation of proceedings under Section 145 Cr. P.C. on the apprehension of breach of peace on the spot, as both the parties were claiming possession over the disputed land. 4. The trial Court on the basis of aforesaid report of the Police Station passed preliminary order on 04.07.2013, whereby the subject land came to be attached and it was placed on the superdnama ofnumberdar of village, namely, Sh. Balwant Singh. This order was questioned by petitioner nos. 1 and 2 by way of a criminal revision in the revisional Court which came to be allowed vide Order dated 02.12.2013, vide which, the trial Court was directed to decide the matter afresh. Consequent whereupon, it appears that learned Executive Magistrate himself went to the spot and recorded statements of witnesses and it was on the basis of this enquiry conducted himself by the trial Magistrate that he vide order dated 17.04.2014 handedover possession of the land in question to the petitioners. 3 5. Respondent No. 3 questioned the aforesaid order passed by the trial Court primarily on the ground that it was violative of principles of natural justice as no opportunity of being heard was provided to him and that it was without jurisdiction. The revision petition preferred by respondent no. 3 came to be allowed by the trial Court vide impugned order dated 31.10.2014. Learned trial Court is of the view that Executive Magistrate in terms of Sub-section(1) of Section 145 Cr.P.C. was obliged to ask the parties to adduce evidence in support of their claims and there is no provision in chapter XCr.P.C., which authorizes the Magistrate to himself proceed to the spot and record findings relating to the disputed possession. On perusal of the record, it also came to the light that respondent no. 3 was not afforded any opportunity of being heard by the trial Magistrate. 6. Having heard learned counsel for the parties and perused the record, I have given my thoughtfulconsideration to the facts and circumstances obtaining the case and the legal position governing the matter. 7. Mr. Raina, learned counsel appearing for the petitioners has relied upon theRanbir Singh v.Dalbir Singh and others AIR 2002 SC 1500to reiterate the grounds urged in the memo of the petition. 8. On the other hand, Mr. Jamwal, learned counsel appearing for private respondent no. 3 has defended the impugned order on the basis of reasoning given by learned Revisional Court. 9. Chapter XCr.P.C. deals withdisputes as to immovable property. Sub-section 1 of Section 145 Cr.P.C. provides the procedure where adispute concerning the land etcis likely to cause breach of peace. Sub- 4 Section 1 of Section 145 of Code of Criminal Procedure (CrPC), 1973 is reproduced below: “(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.” From a plain reading of the aforesaid provision, it is manifest that after a preliminary order is drawn by the Magistrate, he is obliged to require the parties concerned to attend the Court and put in written statements of their respective claims as regards the facts of the factual possession of the subject of dispute. It also postulates that Magistrate shall require the parties to put in such documents or to adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of such claims. A perusal of the record would show that neither learned Magistrate required the parties i.e. petitioners and respondent no. 3, to put in their respective written statements nor asked them to put in the documents or any evidence in support of their respective claims. 10. It is evident from the record that the trial Magistrate instead of adhering to the legal requirement decided to himself proceed to the spot and record the evidence, which is not permissible in law. There is nothing in Section 145 Cr.P.C. which allows the Magistrate to himself proceed 5 tothe spot and record the evidence and return a finding on the basis of the said evidence collected by him. 11. In view of the above, I do not find any illegality, much lessimpropriety inthe impugned order videwhich trial Magistrate was directed by the Revisional Court to consider the matter afresh and passthe order as per the mandate of Section 145 Cr. P.C. Hence, the present petition being devoid of merit is dismissed. 12. Disposed of with connected CMs. 13. Interim directions, if any, shall stand vacated. (Rajesh Sekhri) Judge JAMMU 02.06.2025 NEHA-1 Whether the order is speaking: Yes Whether the order is reportable: Yes