Jammu & Kashmir High Court – Srinagar Bench
Malik Sajad And Anr vs Tariq Ahmad Kakroo And Ors on 28 July, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
S. No.46
Regular List
,,, IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) No. 354/2024 CrlM(1411/2024)
CrlM(1698/2024) CrlM(844/2024)
MALIK SAJAD AND ANR.
.....Petitioner(s)
Through: Mr.I.A.Parray, Advocate
V/s
TARIQ AHMAD KAKROO AND ORS. ... ..Respondent(s)
Through: Mr.Mir Suhail, Advocate with
Mr. Raja Jaffar Nazir, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
28.07.2026
1. The petitioners have challenged order dated 13.05.2024
passed by learned Special Mobile Magistrate Baramulla,
whereby application of the petitioners for seeking de-sealing of
attached property situated at Syed Colony Nishat Srinagar has
been dismissed.
2. It seems that a complaint came to be filed by respondent
No.1 herein against respondent No.4 before the learned trial
Magistrate seeking his prosecution for commission of offence
under Section 138 of Negotiable Instruments Act. It appears that
when respondent No.4/accused did not appear before the trial
CRM(M) No.354 of 2024 1|P a g e
Magistrate despite issuance of non-bailable warrants against
him, the Court issued proclamation under Section 87 Cr.P.C
calling upon the accused/respondent no.4 to appear before it, but
when he did not appear, the accused was declared as proclaimed
offender. A direction was issued by the learned trial Court to
Tehsildar Khanyar to furnish report with regard to movable and
immovable property of accused. In compliance of the direction
passed by the learned trial Court, the Tehsildar furnished report
that land measuring 7 ½ marlas falling under survey No.700/44
min of Estate Nishat Bagh recorded as “Sarkar” is under the
occupation of accused/respondent No.4 on which he has
constructed a house. Thereafter the learned trial Magistrate
issued an order under Section 83 of Cr.P.C, whereby the
Tehsildar was directed to attach the said property pursuant
whereto the Tehsildar attached the said property.
3. The petitioners filed an application objecting to the
attachment of the property by pleading that the attached property
falls under survey No.975/46 and it belongs to them. According
to the petitioners they have purchased the said property against a
sale consideration of Rs.3,00,000/-(Rupees three lacs) by virtue
of agreement to sell and they are in continuous possession of the
property in question.
CRM(M) No.354 of 2024 2|P a g e
4. The learned trial Magistrate after considering the application
of the petitioners rejected the same by virtue of impugned order
dated 13.05.2024 by observing that the attached property falls in
survey No.700/44 min and not under survey No.975/46. It has
been observed that the application of the petitioners is without
any merit.
5. The petitioners have challenged the impugned order passed
by the learned trial Magistrate on the grounds that the attached
property is owned and possessed by them which they have
purchased from one Mansoor Ahmad Rather. It has been
submitted that the petitioners are not parties to the complaint
filed by respondent No.1 against respondent No.4, as such, they
have nothing to do with the liability of respondent No.4/accused.
It has been further contended that once it was made clear by the
petitioners to the learned trial Magistrate that attached property
falls in survey No.975/46 it was not open to the learned trial
Magistrate to continue order of attachment.
6. I have heard learned counsel for the parties and perused the
record of the case.
7. Learned counsel appearing for respondent No.1 has raised
a preliminary objection with regard to maintainability of the
petition on the ground that the petitioners have remedy of filing
a civil suit for establishing their right in respect of the attached
CRM(M) No.354 of 2024 3|P a g e
property in terms of Section 84 (4) of Cr.P.C, as such, they
cannot approach this Court to invoke its power under Section
482 of Cr.P.C.
8. In order to determine the merits of aforesaid objection raised
by learned counsel for respondent No.1, It is necessary to have a
look at the provisions contained in Section 84 of the Cr.P.C,
which read as under:-
“84. Claims and objections to attachment.–
(1) If any claim is preferred to, or objection
made to the attachment of, any property attached
under Section 83, within six months from the date of
such attachment, by any person other than the
proclaimed person, on the ground that the claimant or
objector has an interest in such property, and that such
interest is not liable to attachment under Section 83,
the claim or objection shall be inquired into, and may
be allowed or disallowed in whole or in part:
Provided that any claim preferred or objection
made within the period allowed by this sub-section
may, in the event of the death of the claimant or
objector, be continued by his legal representative.
(2) Claims or objections under sub-section (1)
may be preferred or made in the Court by which the
order of attachment is issued, or, if the claim or
objection is in respect of property attached under an
order endorsed under sub-section (2) of Section 83, in
the Court of the Chief Judicial Magistrate of the
district in which the attachment is made.
(3) Every such claim or objection shall be
inquired into by the Court in which it is preferred or
made:
Provided that, if it is preferred or made in the
Court of a Chief Judicial Magistrate, he may make it
over for disposal to any Magistrate subordinate to
him.
(4) Any person whose claim or objection has
been disallowed in whole or in part by an order under
sub-section (1) may, within a period of one year from
the date of such order, institute a suit to establish the
right which he claims in respect of the property inCRM(M) No.354 of 2024 4|P a g e
dispute; but subject to the result of such suit, if any,
the order shall be conclusive.
9. From a perusal of the aforesaid provisions it is clear that
once the property is attached by the Magistrate by exercising his
powers under Section 83 of Cr.P.C, any person other than the
proclaimed person has right to file objection to the attachment of
the property. Such objection has to be enquired into by the Court
in which the objection is preferred. As per sub section (4) of
Section 84 Cr.P.C, if objection or claim raised by a person has
been disallowed in whole or in part, such party has a right to
institute a suit to establish his right in respect of the attached
property within a period of one year from the date of order.
Thus, a person whose claim to the attached property has been
disallowed by the Magistrate has remedy of filing a civil suit
with a view to establish his right to the attached property.
10. In the instant case, the petitioners have filed the petition
under Section 482 Cr.P.C challenging the impugned order
passed by learned trial Magistrate in terms of Section 84 of
Cr.P.C. They have not availed the appropriate remedy available
to them and instead have rushed to this Court by invoking its
jurisdiction under Section 482 Cr.P.C. It is a settled law that a
litigant who has alternate and efficacious remedy available to
him cannot invoke inherent power of the High Court.
CRM(M) No.354 of 2024 5|P a g e
11. For the fore going reasons, the petition is held to be not
maintainable and is dismissed as such, leaving it open to the
petitioners to avail the remedy available in terms of Section
84(4) of Cr.P.C.
(SANJAY DHAR)
JUDGE
SRINAGAR
28.07.2026
Sarveeda Nissar
1. Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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