This is a petition under section 439/561-A, Cr. P. C. For setting aside the impugned order dated 8th May 1972, of Mr. Ansar Khan, the Magistrate 1st Class, Rawalpindi, directing the S. H. O. Of Police Station Cantonment to seal Shop No. 4/B of the New Cloth Market in Rawalpindi Sadar as also for quashing the proceedings initiated under section 145, Cr. P. C. In respect thereof against respondents Nos. 1 to 3 (first party) and the two petitioners (second party) as unwarranted by law.
2. The facts giving rise to these proceedings are that on 6th May 1972, a report (copy marked A) was lodged at Police Station Cantonment by Mst. Sahira Almas petitioner (No. 1) to the effect that in November 1967 she had taken the shop in dispute on rent through her brother-in-law Muhammad Azam petitioner (No. 2) from Gulbaz Khan respondent (No. 1) who had taken it on lease from Cantonment Board, Rawalpindi for the joint business of his firm named Messrs Gulbaz Bros. As the latter could not legally sublet this shop to anyone else Abdul Hafiz, one of its partners (respondent No. 3) acting on behalf of this firm executed an agreement (copy marked `B') as the first party with Muhammad Azam (petitioner No. 3) as second party giving it a colour of a partnership-deed. In accordance with this agreement the possession of this shop was delivered to petitioner No. 2 Muhammad Azam on a fixed payment of Rs. 400 00 p. m. To Messrs Gulbaz Bros., who had undertaken to pay Rs. 90.00 p.m. Regularly out of this amount to the Cantonment Board as rent.
The two petitioners then set up their business of ready-made garments under the firm name of "Robins Garments" in this shop. This arrangement worker! Quite smoothly till September 1971, when Gulbaz Khan respondent made some defaults in payment of rent to the Cantonment Board, who scaled the same resulting in closure of their business. It was with great difficulty that the shop was got de-sealed by the petitioners on assurance of regular payment of its rent to the Cantonment Board. Gulbaz Khan respondent did not abide by the promise and made some more defaults in payment of its rent consequent on which this shop was sealed twice thereafter much to the detriment of the petitioners. They ultimately approached the Cantonment Board for the transfer of its lease to them which proposal was accepted on 29th April 1972, by the Cantonment Board on thecondition of the clearing of arrears amounting to Rs. 1,581.24. The petitioners complied and a regular lease deed was executed and thereby they became the regular tenants of the Cantonment Board in their own right since the 5th of May 1972, which annoyed the respondents, who in retaliation went to this shop on the next day, i.e. the 6th of May 1972, and forcibly evicting the servants of the petitioners put their own locks on the outer doors of the shop.
3. On the basis of this report a case under section 448, P. P. C. Was registered against the respondents and as a result of the investigation that followed the S. H. O. Of Police Station Cantonment found all the above allegations as correct and came to a firm conclusion that the petitioners were in actual physical possession of this shop since November 1967 and the business assets worth about Rs. 75,000.00 lying therein exclusively belonged to them, but with a view to safeguard the same against likely pilfrage he considered it necessary to get the shop sealed by an order of the Ilaqa Magistrate. He consequently submitted his detailed report (copy marked "C") to him under section 145, Cr. P. C. On 8th May 1972 and obtained the proposed order, which is in the following terms :----- "The police report presented at 7-00 p.m. Is perused. Apprehending that the parties may try to misappropriate the goods of each other, it is ordered that Shop No. 4/B situate in New Cloth Market, Rawalpindi, Sadar, be sealed for the present. S. H. O. To report after compliance and the case be put up on 9th May 1972, for further proceedings."
4. In compliance with this order the shop in dispute was sealed by the S. H. O. Police Station Cantonment, Rawalpindi, on the same evening vide the report dated 8th of May 1972, of the S. H. O.
Placed on the original file.
5. On the 9th May 1972, i.e., the next date fixed in the ease only the petitioner's party appeared before the Ilaqa Magistrate (Mr. Ansar Khan) without any notice, who adjourned it to 11th May 1972, and then to 15th May 1972, without any further proceedings in the matter, when he felt offended over some remarks made by their counsel and forwarded the case to the District Magistrate, Rawalpindi, for its transfer to some other Magistrate who made it over to Ch. Hamid Ullah, vide his order dated 17th May 1972.
6. The papers were placed before the said Magistrate on 18th May 1972, who adjourned it for further proceedings to 19th May 1972, when the first order was passed in the case directing the issuance of notices to the parties for 22nd May 1972.
7. The respondents' party was not served, so the case was adjourned to 23rd May 1972, with fresh notice to them, but without success, so it was adjourned to 24th May 1972, when the file was forwarded to the District Magistrate, with a request to transfer it to some other Court as some of his colleges had shown his interest in the case. The file was placed before the District Magistrate on the same day, who transferred it to Mr. Hasrat Nawaz, Magistrate 1st Class, Rawalpindi. The file was received in latter's Court on 27th May 1972, who issued notice to the respondents' party for 29th May 1972, when Agha Aziz Ahmad, Advocate, appeared on their behalf and requested for an adjournment to inspect the file which was allowed and the case was listed for 30th May 1972, to file their written statements, which were submitted on that date and the case was adjourned to 31st May 1972, for the evidence of the parties.
8. On the next date the respondents' party made an application that their witnesses may be summoned through a process issued by the Court, which request was accepted on the condition that they would take dasti notices for service on their own responsibility for 31st May 1972. Without complying with this order on that date the respondents' party notified to the Court their intention to move the High Court for transfer of the case to some other District. The case was consequently adjourned to 9th June 1972, but no stay order was received till then and on the request of the respondents' party it was again adjourned to 13th June 1972. On 13th June 1972, one of the respondents submitted an affidavit that further proceedings had been stayed by the High Court and to await the original order the case was adjourned to 31st June 1972. The connected petition (Criminal Misc. No. 227/T of 1972) has, however, disclosed that the transfer petition, moved in this Court, was admitted to a regular hearing and the proceedings before the lower Court were stayed by my learned brother Saleem Mazhar, J. On 9th May 1972. As there was no progress in the case the petitioners had in the meanwhile submitted one application (dated 22nd May 1972) before Ch. Hamid Ullah, Magistrate, and the other (dated 9th June 1972) before Mr. Hasrat Nawaz, Magistrate, for de-sealing of the shop to save them from a heavy loss in their business, but so order was passed by any one of them, they had consequently approached this Court for quashment of these.
Proceedings mainly on the ground of lack of jurisdiction in the absence of any apprehension of breach of peace between the parties; the admitted possession of the petitioners over the shop as confirmed by the civil Court; and the unnecessary suspension of the proceedings due to the dilatory tactics adopted by the respondents amounting to abuse of the process of the Court. A notice was accordingly issued to the respondents (Nos. 1 to 3) and the Cantonment Board, Rawalpindi, being the owners of the shop in dispute and a necessary party were also impleaded later as respondent No. 5, who have filed their written statements through their counsel followed by a replication from the respondents.
9. The stand taken on behalf of the respondents (Nos. 1 to 3) is that they were in possession of this shop as lessee of the Cantonment Board, Rawalpindi since 1962 and were paying the rent regularly, the last payment having been made on 28th April 1972, that their lease could not be cancelled except in due course of law and the other party (the petitioners) claiming to be the new lessee under the Cantonment Board had planned to oust them giving rise to the present dispute between the parties involving breach of peace and the consequent adoption of preventive measures by the police under section 107/150 of the Criminal Procedure Code.
It was, however, admitted on their behalf that their application for interim injunction restraining the other parties (the petitioners and the Cantonment Board) from interfering in their possession had been dismissed by the Civil Judge and the appeal filed against this order before the learned District Judge had also met the same fate.
10. The Cantonment Board, Rawalpindi, as fifth respondent, has fully supported the plea set up by the petitioners including the cancellation of lease of respondents (Nos. 1 to 3), the substitution of petitioner No. 1 in their place as 'the lessee of the shop in dispute since 5th May 1972 on payment of the outstanding arrears of Gulbaz Khan (respondent No. 1).
11. The two main points requiring determination in this case are thus existence of any legal justification for-
(i) the sealing of the shop in dispute ; and
(ii) continuation of the proceedings in the lower Court.
12. As regards the sealing of the shop in dispute I am inclined to agree with the contentions raised on behalf of the petitioners that the considerations which prevailed with the learned Magistrate in passing this order find no place in the Statute. The provisions of section 145 of the Criminal Procedure Code envisage only one factor for the passing of such an interim order and that is "emergency" alone and nothing else which is not disclosed at all from the wording of the impugned order reproduced above after its verbatim translation. There could be no ambiguity about his purpose that he had sealed the shop apprehending that the parties might try to misappropriate the goods lying therein and to safeguard against any possible pilferage he had given this temporary direction. It is this aspect of the order which leas changed the entire complexion of the affair as the discretion to pass such an interim order about the property in dispute is limited to cases in which the likelihood of a breach of the peace is so imminent as to call for immediate action to prevent it and has to be exercised with great caution inasmuch as the effect of the order may be to deprive the rightful occupier of his possession. In Atma Singh's case (AIR 1926 Lah.
205the interim attachment of the land in dispute was set aside as it was made only to avoid future litigation about the actual amount of the produce and the order itself was expressed to have been made for reasons which found no justification in the provisions of the Statute. It was further observed that----- "The jurisdiction of Magistrate to deal with disputes concerning land is strictly limited. A very exceptional jurisdiction in that regard has been conferred upon him by this section. Such powers are exercised with great caution even by the civil Court. Where a Magistrate, who otherwise has no jurisdiction in such a matter acts in pursuance of special powers conferred by the statute, he can only do so in strict accordance with statutory provisions. Power under section 145 is given to the Magistrate for the purpose of preserving the peace and it is only for that purpose that he may, where a breach of the peace is imminent, attach disputed property."
Nandkishore v. Radhakishun (A 1 R 1943 Pat. 124) adding that this section is restricted only to maintaining actual possession with a view to prevent imminent breach of the peace.
13. It was urged from the other side that the police report had been perused by him as mentioned in the impugned order which had disclosed a clear danger of breach of peace and had formed the basis of this order, but the relevant portion of the report is absolutely silent about it. The recommendation for sealing the shop has been incorporated in the last paragraph of this report, which only states that it was made on the basis of the dispute about the shop. It did not mention at all any imminent -danger of the breach of peace in this respect, and the learned Magistrate was presumed to know the importance of distinction between a "dispute" and a "dispute likely to lead to breach of peace" as remarked by Durab Patel, J. in Muhammad Bakhsh's case (1968 P Cr. L J 1882In fact the entire report of the Station House Officer was silent about any imminent danger of breach of peace between the parties at any stage as he never felt the necessity of putting the parties under arrest. As a precautionary measure he had no doubt taken .Action under section 107/150, Cr.
P. C. Which negated any immediate danger of breach of peace.
14. The words "to be sealed for the present" used in the impugned order is another indication of the uncertainty of the learned Magistrate about any likelihood of breach of peace in this case and the fact that he had put off further proceedings to the next day also confirmed this conclusion. His subsequent orders would rather bear testimony to the fact that he had passed the impugned order without even reading the initial police report. He had stated in his order dated the 9th of May 1972 that he had proceeded to examine the calendra i.e., the police report, but finding it illegible he had asked the counsel of the petitioners (who were present on that day without issuance of any notice) to decipher it for him and read it out to him on 11th May 1972. The order of that day also conceded that he had not been able to apply his mind to this report and had summoned the Station House Officer for 15th May 1972 to read it out to him when without any further proceedings he forwarded the file to the District Magistrate for transfer to some other Court as he felt offended by some observations of their counsel. The memorandum of the daily proceedings would demonstrate that the impugned order had been passed in indecent haste without appreciating the background and nature of the dispute between the parties as there is a clear admission on his part that he was unable to read the calendra itself. He had, in fact, been) postponing the assumption of jurisdiction in the matter on four successive dates until he got rid of the case. This order was, therefore, bad in law as it was passed by him without applying his mind even to the initial -report, which is worse than the case of Okara Bus Service (1972 P Cr. L J 358) wherein the interim attachment was set aside for similar reasons.
15. As a result of this discussion I hold that the order for sealing the shop having been passed without a definite finding with regard to emergency in the case was not sustainable in law and is therefore set aside. I am supported in this view by the observations made in Ghulam Habib v. The State (PLD 1972 Lab. 158).
16. The impugned order has been struck down primarily due to non--existence of any emergency but the absence of a preliminary order under subsection (1) of section 145 of the Criminal Procedure Code in the circumstances of this case would go to the very root of the proceedings as it was not a case of mere omission in complying with the procedural formalities but of a clear abstention from initiating the proceedings displaying dissatisfaction of the learned Magistrate about the existence of the elements essential for the foundation of his jurisdiction in the matter.
17. The procedural errors or omissions in the mode of exercising jurisdiction could no doubt be cured under section 537, Cr. P. C. If no prejudice is caused to the party concerned as held in Muhammad Ishaque' case (PLD 1961 SC 426later followed by this Court in Arshad Mahmood v.
Masud Khan (PLD 1969 Lab. 74) , and Abdur Rahim v.MalikWahid Bakhsh (1971 P Cr. L J 241and reiterated by the Chie Justice of Pakistan in Noor Muhammad v. Chirag Din (1971 SCMR 245), but in each of these cases there was some defect in the form of the notice issued due to non-- compliance with the requisite formalities like omission of any necessary party or lack of description of the parties or the property involved or of the place where it is situate or the date or time when the dispute took place or the absence of the grounds necessitating the issuance of this notice or the initial order had been made at a later stage to rectify this omission etc. Which would certainly be considered as mere irregularities or errors and omissions in procedure not sufficient to vitiate the entire proceedings in the absence of prejudice to the concerned party as laid down by the Privy Council in Y. M. Abdur Rahman v. King-Emperor (AIR 1927 P C 144) forming the basis of some Indian authorities on this point.
Muhammad Ishaque's case the initial order of the Magistrate had been passed in the following terms; "Seen petitions and reports. I am satisfied that there is serious apprehension of breach of peace and immediate measures are necessary. Start proceedings under section 145, Cr. P. C. The -- property is attached and O/S Kotwali appointed receiver. Let party file written statements by 24-11- 1959."
There is a clear indication of initiation of proceedings and fixation of a date for filing the written statements as prescribed in the section. The contention raised in this case was the absence of the grounds of the satisfaction of the Magistrate concerned in taking these proceedings. It was held only a technical defect in the form of the initial order which did not vitiate it at all. The same was true in Arshad Mahmood's case, but the Magistrate had on receipt of the police report duly summoned the parties for the next date. In the case of Abdur Rahim the learned Magistrate had also on receipt of the police report issued the necessary notice and invited the written statements of the parties for the next date and the infirmities pointed out pertained to the contents of the order only and adopting the view expressed in the above Supreme Court case condoned this defect in the form of the initial order. In the case of Noor Muhammad as well a similar contention was raised but the Magistrate concerned after examining the police report had duly issued the requisite notices calling upon the parties to submit the written statements in which no objection was taken at all about his jurisdic--petition. Their Lordships considered it only a formal defect and declined to, interfere.
I have also examined the Full Bench judgment of the Calcutta High: Court In re: Khosh Muhammad Sarkar v. Nazir Muhammad (I L R 33 Cal. 352) followed by our Supreme Court in Muhammad Ishague's case and find that the initiatory order summoning the parties to file their written statements had been duly recorded therein although it was silent about the ground on Whichthe Magistrate had proceeded in the matter, but it was considered self-contained as it gave sufficient indication about the nature of the dispute between the parties eliminating the chance of any prejudice to either, of theta.
I have also examined some other earlier authorities proceeding on, similar lines like Muhammad Sharif v. Laid Dhanpat R.I (AIR 1914 Lab. 295Sajjad Hussain v. Nanak Chand (AIR 1917 Lab. 35), Jhanda Ram v. Topan Ram (AIR 1922 Lab. 454), M. G. Polon v. M. G. Baon (AIR 1925 Rang. III(2)), B.
Madan Mohan Lai v. Sheoraj Kunwar (AIR 1932 All. 446), Gadagamma Venkatapathi v.
Baliaraimhuni Sanyasiraju (AIR 1932 Mad. 368), Barmah Singh v. Emperor (AIR 1932 All. 68), Kapur Chand v. Suraj Pershad (AIR 1933 All. 264), Mohan Lai v. Mst. Morni (AIR 1933 Pesh. 88), Ratan-- Chand v. Tikka (AIR 1939 Lab. 233), Chanan Singh v. Emperor (AIR 1938 Mad. 346), Nandi Khishori v. Radah Krishna (AIR 1943 Pat. 124), Gul Muhammad v. Mst. Kulra (PLD 1961 Pesh. 76), Abdul Majid v. The State (14). Most of these cases were discussed by my learned brothers Muhammad Afzal Cheema, J. In Arshad Mahmood's case and Syed Shamim Hussain Kadri, J. In Abdul Rahim's case and find that in all these cases a notice was duly issued to the parties though it was incomplete in one form or the other or that parties were present before the Magistrate either due to inspection of the spot by him on a police report or a private complaint and had been called upon to submit their written statements about their respective claims to the property in dispute. Some substantial steps had been taken in all these cases indicating thereby an assumption of the jurisdiction for proceeding under section 145, Cr. P. C. But in the present case the Magistrate concerned seems to have abstained rather avoided to initiate the proceedings for full one week after the submission of the police report in spite of persistent request of the counsel of the petitioners who had on each date pressed him for passing the initial order under section 145, Cr. P. C. Which is clearly borne out from the daily order sheet reproduced above from the lower Court's file and another document therein. It is an unsigned affidavit of Maj. (retired) Muhammad Akram, the husband of petitioner No. 1 to that effect. I was really surprised to find it on record and have not been able to make out how it was placed thereon but all the same it supports the allegation made in this petition about it, which cannot be brushed aside as an afterthought in the presence of this document and the unprecedented attitude of the Magistrate himself. To my mind his hesitation was certainly a negation of his satisfaction about the existence of any apprehension of breach of peace which is one of the three essential pre-requisites forming the foundation of The jurisdiction of a Magistrate to proceed under section 145, Cr. P. C. As laid down by their Lordships of the Supreme Court in Muhammad Ishaque's case and followed by Dorab Patel, J. In Mir Jafar Khan Jamali's case (PLD 1971 Quetta 84A similar view had been taken earlier in Khanger v. Jhanman (AIR 1950 All. 734) and The State v, Abdus Sattar (PLD 1965 Kar. 305 Readverting to the facts of the case the shop in dispute is the property of the Cantonment Board, Rawalpindi (respondent No. 5), which was leased out to Gulbaz Khan (respondent No. 1) in 19622 for the business .Of their firm Messrs Gulbaz Bros., who had delivered its possession through Abdul Hafeez, one of its partners, to Muhammad Azam (petitioner No. 2) on the basis of an agreement executed between them in November 1967 and it continued in the exclusive possession of the petitioners who are running their exclusive business therein ever since then till 6th May 1972, when the respondents interfered with their possession by putting their locks on its outer doors resulting in the registration of a case under section 448, P. P. C. On the report lodged by Mst. Sahira Almas (peti--tioner No. 1). All these facts have been duly confirmed as correct by the Station House Officer in his report under section 145, Cr. P. C. About this dispute. Before the initiation of these proceedings the respondent (No. 1) Gulbaz Khan had instituted a suit in the Court of the Administrative Civil Judge, Rawalpindi, on 8th May 1972, urging that he is a lessee of the shop in question since 1962, and had been regularly paying its rent to the respondent Board, that the respondent Board had asked Mrs. Sahira Almas (petitioner No. 1) to execute lease deed in respect of the shop in question, that the lease in favour of the applicant (respondent No. 1) still continued and no lease could be executed with another person during the subsistence of the applicant's (respondent No. 1), lease that the action of the respondent Board in asking the petitioner No. 1 to execute a lease is illegal, mala fide, ultra vires and ineffective on the rights of the applicant (respondent No. 1) and that respondent Board had not served the respondent with any notice and every action of the respondent Board without any notice to him is a nullity. Along with this plaint he had submitted an application for interim injunction restraining the Cantonment Board, Rawalpindi (respon--dent No. 5), Mst. Sahira Almes (petitioner No. 1) and her husband Maj. (retired) Muhammad Akram from interfering with his possession, which was dismissed on 17th May 1972, before the issuance of a notice to the parties. Learned Civil Judge in his detailed order observed that the respondent Board does no more recognise the applicant (respondent No. 1) to be its tenant that from the facts stated and the documents referred to above it appeared that the possession and the control over the shop in question was that of the respondents Nos. 2 and 3 (the petitioner No. 1 is res--pondent No. 2 in the civil suit) and not of the applicant (respondent No. 1). He added that the question as to whether the respondent Board could or could not execute any lease in favour of the respondent under the terms and conditions of the applicants' lease and under its rules can only be decided after recording evidence, that it also looked that the applicant (respon--dent No. 1) had concealed some of the most important facts and he had not come to this Court with clean hands, that it was for the applicant (respondent No. 1) to show that he was in the exclusive and undisputed possession of the shop in question which he had failed to do by any document, that from the facts stated above I was fully convinced that it was the respondent No. 2 (petitioner No. 1) who was running her business in the shop in question and if it was so it would be a matter of great hardship for her (petitioner No. 1) if the status quo order is made because the shop is, as I am told by the parties' learned counsel, sealed by the police on the report of the lady respondent (petitioner No. 1) and for this reason the balance of convenience also lay in not granting any temporary injunction.
19. The exclusive possession of the petitioners was thus confirmed not only by the Station House Officer in his report, but by the Civil Judge as well in the above quoted order. It is admitted by the respondents in the replication filed by them as also their counsel at the Bar that the appeal filed by respondent No. 1 before the District Judge against this order of dismissal of his application for interim injunction had met the same fate. I have also sent for the S. H. O. Police Station Cantt.
(Investigating Officer) along with the record of the case under section 448, P. P. C. Which has disclosed that the police had put the challan in Court against the respondents Nos. 1 to 3 in this case under section 448, P. P. C. Dubbing them as trespassers.
The petitioners had disclosed all these factors in their written statements including the dismissal of the application of the respondent No. 1 for interim injunction on 17-5-72 by the Civil Judge, seized of the civil case.
20. The substance of the plaint of respondent No. 1 repro--duced above from the copy of the order of the Civil Judge forming part of this record will show that the dispute in fact is between the Cantonment Board, Rawalpindi (the owner of the shop) and the respon--dent No. 1, the original lessee and that too is limited to the recognition of the subsistence of his lease and not at all about its possession. Even if he ultimately succeeds in obtaining a decree it cannot go beyond restoring the lease of the shop in his favour entitling him to its constructive possession as lessee with the petitioner in actual possession of the shop as his sub-lessees in accordance with the original agreement between them.
There was thus no serious direct dispute about the possession of the shop itself between the petitioners and the respondents Nos. 1 to 3 but an indirect tine and that too restricted only to the attornment of the petitioners to the respondents Nos. 1 to 3 as sub-lessee under them as before and not to Cantonment Board (respondent No. 5) under their own lease. I, however, would not like to comment any more about it as the matter is sub judice with a civil Court in the suit instituted by respondent No. 1 as also in a criminal Court in connection with the report of the petitioner (No. 1) under section 448, except that it was a minor dispute not likely to cause any breach of peace between them: The proceedings under section 107/ 150, Cr. P. C. Were only a precautionary measure adopted by the local police as the report itself is silent about the continuation of any such apprehension thereafter. The object of the police in initiating the proceedings under section 145, Cr.
P. C. Was only to ensure the safety of the goods lying therein and not against any danger of breach of peace as held by me above. It had rather created an anomalous situation as on the one hand the police investigator had found the allegations made by Mst. Sabira Almas (petitioner No. 1) as correct and confirming her exclusive posses--sion of the shop since November 1967 and dubbing the respondents (Nos. 1 to 3) as trespassers but on the other hand jeopardising her exclusive business assets to the tune of Rs. 75,000.00 by instituting these proceedings to put 'her on proof for the same which was likely to be prolonged unnecessarily much to her detriment and distress. To my mind it displayed the weakness of the police who shirked their responsibility in affording relief to the person whose lawful possession according zo the result of their own investigation had been interfered with by a wrongdoer. It certainly amounted to putting a premium on aggressiveness and violation of law and encouragement of persons who feel no hesitation in taking the law into their own hand. It was therefore, not a fit case for proceedings under section 145, Cr. P. C. Especially after it had been brought to the notice of the learned Magistrate that the civil Court was already seized of the matter and had regulated the possession of the shop by declining interim injunction as prayed for by the respondent (No. 1) in the matter. He should have respected this recent decision given by a competent civil Court on the question of possession in view of the dictum of their Lordships of the Supreme Court in Shah Muhammad's case (PLD 1970 SC 470highlighting this judicial propriety especially when the preventive measures under section 107/150, Cr. P. C. Had recently been taken against the parties and there was no allegation in the police report that any of them intended to violate the terms of the bond already furnished by them to keep the peace pending the disposal of the case. In cases where civil litigation is pending about any disputed property and possession thereon has been regulated by a finely or interim order the Magistrates would be well advised to feel content) with proceedings under section 107 rather than under section 145, Cr. P. C.1 as observed in Inder Bahadur Singh v. State (AIR 1952 Vindh. Pra. 67) and Malkappa v.1 Padmana (AIR 1959 Mys. 123).
21. Anyhow these proceedings were started on 8th May 1972 and have not yet progressed beyond the submission of the written statement during the period of fifteen months due to the stay of these proceedings by an order passed in the transfer petition (Criminal Misc. No. 227/T of 1972} filed by respondents (Nos. 1 to 3) themselves resulting in irreparable loss in the business of the petitioners although their exclusive possession of the shop in dispute had been confirmed by the police and also by the civil---Court already seized of the matter. It would not only prolong their agony and inflate their heavy loss in business if their case is allowed to proceed further, but would also amount to an abuse of the process of the Court in. View of the conclusions arrived at by me above.
I, would therefore accept this petition and quashing the proceedings of this case under section 561-A, Cr. P. C. Order the Magistrate concerned to restore forthwith. The possession of the shop in dispute to the petitioners, which shall always be subject to the decision of the concerned Court.
Reliance is placed on Ghulam Habib's case for this direction in the matter.
A. H.