Sheikh MEHDI and 2 others vs The STATE and 4 others

MALIK HAQ NAWAZ, J.---The brief facts of filing the present petition under section 561-A, Cr.P.C., are that on 18.3.2016, SHO Police Station Shiger submitted a compliant under sections 107/151/145, Cr.P.0 to Tehsildar Shiger for taking action against the petitioners and some others. /Facts mentioned in the complaint are that a dispute between two rival factions namely Ali Muhammad, Abdul Rehman and Akbar etc. And on the other side Sheikh Mehdi, Muhammad Hussain and Mushtaq over exchange of some land is likely to erupt which may result in breach of peace aid tranquility of the area. The SHO requested that the parties be bound down under sections 107/151/145, Cr.P.C. And the disputed property be attached under section 145, Cr.P.C.,

2. On receipt of complaint Tehsildar Shiger bounded down both the parties under sections 107/151, Cr.P.C. And also ordered attachment of disputed property under section 145, Cr.P.C.

3. Being aggrieved from the above order the petitioners filed a revision petition against the above order in the Court of learned Addl. Sessions Judge Skardu, which was dismissed vide order 29.04.2016 and the learned Additional Sessions Judge upheld the order/judgment of Tehsildar Shiger dated 18.03.2016.

4. The petitioners filed instant petition under section 561-A, Cr.P.C. Before this Cart challenging the legality and propriety of both the orders.

5. The learned counsel for the petitioners submitted that order of Tehsildar Shiger is in excess of jurisdiction and the learned Addl.

Sessions Judge Skardu completely failed to appreciate the law in its true perspective and both the learned Courts have mis-applied the law, which resulted in mis-carriage of justice and liberty of the petitioners have been curtailed, which is against the mandate of Chapter-2 of Self Governance and Empowerment Order, 2009.

6. On the other hand the learned Prosecutor General defended both the judgments and prayed that there was no option available with the Tehsildar Shiger except to initiate action against the parties and the learned Addl. Sessions Judge rightly dismissed the revision petition.

7. After hearing both the parties at length and perusal of record, shows that Tehsildar/Magistrate 1st class Shiger on presentation of a complaint by SHO Shiger under section 107/151/145, Cr.P.C., acted in a hasty and slipshod manner and bound down the parties under sections 107/151, Cr.P.C.

And also ordered attachment of disputed property under section 145, Cr.P.C.

8. The Tehsildar on receipt of complaint under section 107/151, Cr.P.C. Was bound to issue notice to the parties under section 112, Cr.P.C, which is a pre-requisite and a mandatory requirement of law.

For the purpose of convenience section 112, Cr.P.C., is reproduced as under:- 112 Order to be made . When a Magistrate acting under section 107, section 108, section 109 or section 110 deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required."

9. A careful study of section 112, Cr.P.C. Contemplates that section 112, Cr.P.C. Makes it obligatory on a Magistrate to make an order in writing setting forth the substance of information received, the amount of bounds to be executed and the term for which the parties will be bound down.

10. The above procedure is mandatory in nature which has not been followed. Now it is almost all it is a settled proposition of law that if the mandatory procedure provided under section 112, Cr.P.C. Is not followed, the entire proceeding will be nullity in the eyes of law.

11. The petitioners filed a revision petition under section 439, Cr.P.C., in the Court of learned Addl.

Sessions Judge Skardu. It is noted with regret that the learned Addl. Sessions Judge Skardu also did not bother to look into the relevant provisions of law and dismissed the revision petition without any legal justification. Ignorance of law shown by the learned Addl. Sessions Judge is not taken in good taste. He is advised to make himself conversant with the law, as he has been assigned the duty to dispense justice between the parties at helm of affairs of a District Judiciary. A Judge should know the law on the slaves of his robs. The parties could have been saved from the inconvenience, if a little effort could have been made by the learned Addl. Sessions Judge to have a cursory glance on the relevant provisions of law.

12. The nutshell of above discussion is that the order of Tehsildar/Magistrate Shiger dated 30.03.2016 and the order passed in revision petition by the learned Addl. Sessions Judge Skardu dated 29-04-2016 are quashed by accepting this petition. However, the parties may approach the Court of competent jurisdiction for the possession/ownership of their disputed land, if so advised.

13. A copy of this judgment be circulated among all the District and Session and Addl. Sessions Judges for their information/compliance in future.

14. With the above findings, the petition in hand is disposed of.