Gujarat High Court
Vaishaliben Mitulbhai Gorasiya vs State Of Gujarat on 31 July, 2025
NEUTRAL CITATION
R/SCR.A/2754/2021 ORDER DATED: 31/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2754 of 2021
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VAISHALIBEN MITULBHAI GORASIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. BHAUMIK DHOLARIYA(7009) for the Applicant(s) No. 1
MR BN LIMBACHIA(3454) for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/07/2025
ORAL ORDER
1. By way of this petition under section 482 of Cr.P.C., the
petitioner has prayed for following reliefs :-
"A) Your Lordships may be pleased to admit and allow
this petition.
B) Your Lordships may be pleased to quash and set
aside the judgment and order dated 15.02.2021 passed by
the 16th Additional Sessions Judge, Surat in Criminal
Revision Application No.134 of 2020 and the order dated
26.02.2020 passed by the Executive Magistrate, Surat City,
Puna Area in Case No.M.A.G./C.R.P.C. Section -145/
Sarthana Police Station Case No.8/2018.
C) During the pendency and till the final disposal of this
petition, Your Lordships may be pleased to stay the further
execution, operation and implementation of the judgment
and order dated 15.02.2021 passed by the 16 th Additional
Sessions Judge, Surat in Criminal Revision Application
No.134 of 2020 and the order dated 26.02.2020 passed by
the Executive Magistrate, Surat City, Puna Area in Case
No.M.A.G./C.R.P.C. Section -145/ Sarthana Police Station
Case No.8/2018.
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D) Pass any such other and or further order/s that may
be thought just and proper, in the facts and circumstances of
the present case and in the interest of justice."
2. Facts of the case are as under :-
2.1. On 11.02.20212 respondent no.2 married to respondent
no.3. On 03.10.2015, respondent no.3 purchased Flat No.E-
1003 situated at Vastupujuan Residency, Simadagam Yogi
Chowk, Surat admeasuring 71.25 sq.mtrs. Through registered
sale deed at Rs.15,00,000/-. That in Augst, 2017, the petitioner
decided to purchase the subject property from respondent no.3
at Rs.22,00,000/- and executed an agreement to sale in this
regard on 29.08.2017. It is stated that on 05.10.2017 petitioner's
husband has availed loan of Rs.19,80,000/- from the Bank of
Baroda for the purchase of subject property which was
disbursed on 15.10.2017. On 13.10.2017 respondent no.3
executed registered sale deed in favour of petitioner. That on
07.11.2017 respondent no.2 lodged FIR No.233 of 2017 before
Sarthana Police Station against respondent no.3 for offence
under section 323, 504, 498A and 114 of Indian Penal Code.
That on 09.04.2018 respondent no.2 filed application against
petitioner and husband of the petitioner namely Mitul Goraisya
under section 145 of Cr.P.C. before Executive Magistrate, Surat
City seeking various reliefs against the petitioner and her
husband. On 26.02.2020, Executive Magistrate, Surat City,
Puna area allowed the application filed by respondent no.2 and
observed that possession of respondent no.2 before two months
from the date of dispute. It is further observed that petitioner,
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her husband and other person shall not breach the peace and
tranquility and shall not do any act which breaches the
tranquility and shall not enter the subject premise. On
20.03.2020, the petitioner challenged the said order dated
26.02.2020 passed by Executive Magistrate before Sessions
Court, Surat by preferring Criminal Revision Application No.134
of 2020. On 15.02.2021, learned Sessions Judge, Surat
dismissed the Revision Application of the petitioner. Hence, this
petition.
3. Heard learned advocate Mr.Bhaumik Dholariya for the
applicant, learned advocate Mr.Nishit Joshi for private
respondent and learned APP for respondent State.
4. Perusal of record indicates that under provision of section
145 of Cr.P.C. initiated at the behest of private respondent on
09.04.2018, Executive Magistrate, Surat City, Puna Area passed
following order :-
"The land, which is located in Surat District, Surat City
(Puna) Sub-district, in Mouje: Puna, bearing Revenue Survey
Numbers 302/2, 303/2, 318, 319, 320, and 321, Block No.
346/B, admeasuring 9409 sq. meters, has been assigned
Final Plot No. 115 under T.P. Scheme No. 60 (Puna), with a
final plot area of 7527 sq. meters. On the said non-
agricultural land, a building named Vastu Pujan Heights is
planned for residential purposes. It is hereby held that the
applicant, Divyaben, wife of Jigneshkumar Kanubhai
Dhameliya, was in peaceful and actual possession and
enjoyment of Flat No. 1003 on the 10th floor of E-Type, with
a built-up area of 21.25 sq. meters, for two months prior to
the date the dispute arose.
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All the Respondents of this case and other persons are
hereby warned not to disturb or cause to be disturbed the
peace and tranquility regarding the possession of the said
land and that they shall not commit or cause to be
committed any act that would breach peace and tranquility;
they shall not enter or cause to be entered into the disputed
property. All parties are directed to take precautions to
ensure that the peace and tranquility is not disturbed
regarding the possession of the said land. Furthermore, the
Police Inspector, Sarthana Police Station, Surat City, is
ordered to take legal action if any unlawful act is committed
by the parties."
5. At the outset, I may refer section 145 of Cr.P.C., which
reads as under :-
45. Procedure where dispute concerning land or water
is likely to cause breach of peace.
(1) Whenever an Executive Magistrate is satisfied from a
report of a police officer or upon other information that a
dispute likely to cause a breach of the peace exists
concerning any land or water or the boundaries thereof,
within his local jurisdiction, he shall make an order in
writing, stating the grounds of his being so satisfied, and
requiring the parties concerned in such dispute to attend his
court in person or by pleader, on a specified date and time,
and to put in written statements of their respective claims as
respects the fact of actual possession of the subject of
dispute.
(2)For the purposes of this section, the expression "land or
water" includes buildings, markets, fisheries, crops or other
produce of land and the rents or profits of any such
property.
(3)A copy of the order shall be served in the manner
provided by this Code for the service of a summons upon
such person or persons as the Magistrate may direct, and at
least one copy shall be published by being affixed to some
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conspicuous place at or near the subject of dispute.
(4)The Magistrate shall then, without reference of the merits
or the claims of any of the parties to a right to possess the
subject of dispute, peruse the statements so put in, hear the
parties, receive all such evidence as may be produced by
them, take such further evidence, if any, as he thinks
necessary, and, if possible, decide whether any and which
of the parties was, at the date of the order made by him
under sub-section (1), in possession of the subject of
dispute :
Provided that if it appears to the Magistrate that any party
has been forcibly and wrongfully dispossessed within two
months next before the date on which the report of a police
officer or other information was received by the Magistrate,
or after that date and before the date of his order under sub-
section (1), he may treat the party so dispossessed as if that
party had been in possession on the date of this order under
sub-section (1).
(5)Nothing in this section shall preclude any party so
required to attend, or any other person interested, from
showing that no such dispute as aforesaid exists or has
existed; and in such case the Magistrate shall cancel his
said order, and all further proceedings thereon shall be
stayed, but subject to such cancellation, the order of the
Magistrate under sub-section (1) shall be final.
(6)(a)If the Magistrate decides that one of the parties was, or
should under the proviso to sub-section (4) be treated as
being, in such possession of the said subject, he shall issue
an order declaring such party to be entitled to possession
thereof until evicted therefrom in due course of law, and
forbidding all disturbance of such possession until such
eviction; and when he proceeds under the proviso to sub-
section (4), may restore to possession the party forcibly and
wrongfully dispossessed.
(b)The order made under this sub-section shall be served
and published in the manner laid down in sub-section (3).
(7)When any party to any such proceeding dies, the
Magistrate may cause the legal representative of the
deceased party to be made a party to the proceeding and
shall thereupon continue the inquiry, and if any question
arises as to who the legal representative of a deceased
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party for the purposes of such proceeding is, all persons
claiming to be representatives of the deceased party shall be
made parties thereto.
(8)If the Magistrate is of opinion that any crop or other
produce of the property, the subject of dispute in a
proceeding under this section pending before him, is subject
to speedy and natural decay, he may make an order for the
proper custody or sale of such property, and, upon the
completion of the inquiry, shall make such order for the
disposal of such property, or the sale-proceeds thereof, as he
thinks fit.
(9)The Magistrate may, if he thinks fit, at any stage of the
proceedings under this section, on the application of either
party, issue a summons to any witness directing him to
attend or to produce any document or thing.
(10)Nothing in this section shall be deemed to be in
derogation of the powers of the Magistrate to proceed under
section 107."
6. General power of Magistrate under section 144 is
essentially for keeping away breach of peace. Executive
Magistrate cannot decide the issue of title. Executive Magistrate
was required to confine to the issue whether dispute is
concerning land or water including the boundaries thereof, is
likely to cause breach of peace or not. To initiate proceedings
under section 145 of Cr.P.C. three requirements have to be
fulfilled viz. (I) there must be a real breach of peace inviting such
proceedings (ii) there must be material on record to prove the
actual breach of peace and (iii) the Executive Magistrate shall
form a subjective satisfaction to initiate such proceedings. In
substance and effect a proceeding under section 145 is not for
the purpose of evicting any person from any land but is primarily
concerned with the prevention of breach of the peace by
declaring the party found in possession to be entitled to remain
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in possession until evicted therefrom, in due course of law.
7. What could be noticed from the aforesaid final order
passed by Executive Magistrate in proceedings under section
145 of Cr.P.C., he has declared respondent no.2 as rightful
possessor of disputed property. From the two sale deed on record
(Annexure C) indicates that subject property was purchased by
Jigneshkumar Patel by executing registered sale deed on
26.08.2015. He has purchased said property from M/s. Vastu
Enterprise. Jigneshkumar Patel is husband of respondent no.2.
It is informed to the Court that matrimonial dispute is going on
between Jigneshkumar Patel and respondent no.2. Another sale
deed executed on 12.10.2017 (Page no.72 of paper book)
indicates that Jigneshkumar Patel has sold the property to the
petitioner and handed over possession of the property to the
petitioner as per averments made in the sale deed. Therefore,
admittedly, documentary evidence on record indicate that prior
to application filed under section 145 of Cr.P.C. by private
respondent, the petitioner became owner and occupier of
disputed property. Possession always follows title.
8. Being aggrieved by the order passed by Executive
Magistrate, the petitioner preferred Revision Application No.134
of 2020 before the learned Revisional Court. Perusal of judgment
thereof indicates that learned Sessions Court was completely
oblivious to provision of section 145 of Cr.P.C. and confirmed the
order passed by Executive Magistrate which is itself non-est and
void and rather it is an attempt on the part of private respondent
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to nullify sale deed in favour of the petitioner, which could only
be done by learned Civil Court. Order passed by Executive
Magistrate is without jurisdiction. Executive Magistrate has
exercised power of Civil Court. Hence, there is error on the part
of Executive Magistrate as well as learned Sessions Court.
Jurisdictional error committed by Executive Magistrate and
confirmed by learned Sessions Court permit this Court to
exercise supervisory jurisdiction under Article 227 of the
Constitution of India.
9. For the foregoing reasons, the petition is allowed.
Impugned order dated 15.02.2021 passed by learned Sessions
Court in Criminal Revision Application No.134 of 2020 which in
turn confirmed the order dated 26.02.2020 passed by Executive
Magistrate, Surat City, Puna Area in Case No.M.A.G./C.R.P.C.
Section 145/ Sarthana Police Station Case No.8 of 2018 are
quashed and set aside. Proceedings under section 145 of Cr.P.C.
is dismissed.
(J. C. DOSHI,J)
SATISH
