Recently, the Jammu and Kashmir High Court set aside an order passed by the Additional District Magistrate under Section 145 of the Code of Criminal Procedure (CrPC), holding that it was issued in breach of the mandatory provisions contained in Sections 145(1) and 146(1). The Court emphasized that before invoking powers under Section 145, the Magistrate must strictly adhere to the procedural safeguards outlined in the statute. The Court further explained the steps to be mandatorily followed while exercising jurisdiction under this provision, underscoring that satisfaction regarding breach of peace must be properly recorded with reasons.
Brief Facts:
In the present case, the Additional District Magistrate had directed the attachment of a piece of land and handed over its possession to the Lumberdar and Sarpanch. This action was based on a report submitted by the Tehsildar, which recommended attachment under Section 145 CrPC. Aggrieved by this decision, the petitioner challenged the order before the High Court, alleging that the procedure prescribed under law had not been followed.
Contentions of the Petitioner:
The counsel for the petitioner contended that the impugned order was not passed in accordance with the requirements of Section 145 of CrPC. It was argued that the Magistrate did not record any satisfaction regarding the existence of a dispute likely to cause breach of peace, nor did the order contain any such reasons or grounds.
Observations of the Court:
The Court, after examining the provisions of Section 145(1), laid down the procedure that must be followed by the Magistrate while invoking powers under this section. The Court held, “Executive Magistrate must record satisfaction that a dispute likely to cause breach of peace exists concerning any land or water or boundaries thereof within local jurisdiction and then he shall make an order in writing in which he would record the grounds of his being satisfied and after recording the same should require the parties concerned in such dispute to attend the court in person or by pleader on a specified date and time and to put written statements of their respective claims in respect of the fact of actual possession of the subject dispute.”
The Court also found that the Magistrate failed to comply with Section 146(1) CrPC, which governs the attachment of subject property pending the resolution of the dispute regarding possession. It was held that these mandatory safeguards were completely overlooked.
The decision of the Court:
Finding the impugned order to be unsustainable in law, the High Court set it aside and remanded the matter back to the Additional District Magistrate, Kupwara, with a direction to proceed afresh strictly in accordance with the procedure laid down under Section 145 and Section 146 of CrPC. The petition was accordingly disposed of.
Case title: Mohammad Akbar Sheik V. Mst Jana & Ors
Coram: Justice Vinod Chatterji Koul
Case no: CRM(M) 67/2023
Advocate for the Petitioner: Adv. T. A. Lone
Advocate for the Respondent: Adv. Sheikh Manzoor
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