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Magistrate cannot be said to have taken cognizance of the offence for ordering investigation under Section 156(3) CRPC, or for issuing a search warrant for the purpose of the investigation: Jammu and Kashmir High Court

If there is bona fide dispute between two parties and both are asserting the possession but unless there is evidence to ascertain the fact as to whether the disputed portion is part of which, no process could be issued and taking of cognizance of the offences is without jurisdiction and abuse of the process of law. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA in the matter of National Insurance Company Ltd V. Feroz-ud-Din & anr [IA No. 01/2018], dealt with an issue where the petitioner filed a petition seeking to quash order passed by the Judicial Magistrate 1st Class, Banihal whereby, he has directed issue of process against the accused under sections 447/379/506 RPC.

The facts of the case in brief are these; both the parties are residents of Village Senigam Neel, Revenue Village Dhanmasta, Tehsil Pogal Paristan (Ukhral) District, Ramban, while the landed property of the petitioner is in Village Dhanmasta. The land of the respondent is in village Neel but land in Khasra No. 417 has been purchased by the respondent in village Bohardar.

Petitioners are in possession of land measuring 14 kanals, 2 Marlas in Khasra situated at Village Dhanmasta. It is admitted fact that the land comprising of Khasra \ and land comprising of Khasra are contiguous and have common boundary. The respondent himself filed an application under section 156(3) Cr. P.C in the Court of learned Munsiff, Banihal alleging that, the petitioners have encroached upon the land comprising Khasra No. 417 and also took away ten bundles of grass.

The report stated that the dispute between the parties cannot be resolved unless Patwari of Village Bohardar and Patwari of Village Dhanmasta visit the spot and demarcate the boundary of the two Khasra numbers by Nishandehi.

The learned Magistrate took cognizance and issued process to all the accused. There is nothing on record to justify the police report for the issuance of process against the accused, as the report only says that the dispute between the parties is about the boundry of Khasra No. 4 991 and Khasra No. 417 and it can be settled only by demarcation of the boundaries. Whether the disputed portion is part of Khasra No. 991 or 417 can be determined only by Nishandehi and not otherwise. There is no evidence regarding the allegation of theft of ten bundles of grass or digging of the portion.

After hearing both sides, the Hon’ble High Court of Jammu and Kashmir allowed the petition and held that the order impugned is illegal on the admitted facts of the case and the same is, accordingly, quashed. It also held that the order of Trial Court is, thus, abuse of process of Court as the disputes are purely of civil nature, which should be resolved only by the Revenue Officers after proper demarcation.

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Judgement reviewed by – Vaishnavi Raman

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