Rajasthan High Court - Jodhpur

Ramdev vs State Of Rajasthan on 20 April, 2023

Bench: Manoj Kumar Garg

[2023/RJJD/010396]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2671/2022

1. Ramdev S/o Kishan Lal, Aged About 51 Years,

2. Bhagwati Devi W/o Sh. Ramdev, Aged About 48 Years,

3. Shiv Kumar S/o Ramdev, Aged About 31 Years,

All by caste Suthar, R/o Village Gadhwala, Tehsil And District Bikaner (Rajasthan)

----Petitioners Versus

1. State Of Rajasthan, Through Pp

2. Krishna Kumar S/o Mohanlal, R/o 1-D-52 Jai Narayan Vyas Colony, Bikaner (Raj.)

3. Sunil Morwani S/o Begraj, R/o Ishwar Kunj, Sudarshna Nagar, Bikaner (Raj.)

----Respondents

For Petitioner(s) : Mr.Ratish Bhatnagar, Adv. For Respondent(s) : Mr.Mool Singh Bhati, PP Mr.Anil Kumar Singh, Adv.

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order Reserved on : 17/04/2023

Order Pronounced on : 20/04/2023

The present criminal misc. petition under Section 482 Cr.P.C.

has been filed against the order dt. 30.03.2022 passed by the

learned Additional Sessions Judge No.5, Bikaner in Criminal

Revision No.05/2022, whereby the learned Revisional Court has

dismissed the revision petition of the petitioners and affirmed the

order dt. 10.02.2022 passed by Sub-Divisional Officer (North),

Bikaner in Criminal Case No.01/2022. The Sub-Divisional Officer

while passing the order for the attachment of the land in dispute,

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appointed SHO, Police Station Napasar as Receiver of the land

vide order dt. 10.02.2022.

Brief facts of the case are that the respondent No.2-Krishna

Kumar Metha submitted a complaint before the SHO, Napasar,

Distt. Bikaner on 18.01.2022 stating therein that the land

situated at Bikaner-Gaadhwala Road, Bikaner, of which three

separate patta in the name of firm Ganpati Udhyog, Firm Bhagwati

Udhyog and firm Shiv Udyog, were purchased by the complainant

and Sunil Mowani through registered sale-deed dt. 09.09.2021

and as per the demarcation shown by the petitioner No.1-Ramdev,

they received the possession of the land from him. The petitioner

No.1-Ramdev, his wife Bhagwati (Petitioner No.2) and his son-

Shivkumar (petitioner No.3) were alleged to be the owners of the

said firms. It was also averred in the complaint that on

10.09.2021, two-three persons came and informed him about

dispute regarding boundary of the land. When the petitioner No.1-

Ramdev was called on the spot, he assured that he will resolve the

dispute regarding boundary of the land but till date, the dispute

has not been resolved. Later on, the complainant came to know

that the land of firm Shiv Udyog is still under mortgage and this

fact was deliberately concealed by Ramdev and he is regularly

visiting the land and also threatening the watchmen/cultivator to

rush away from the land. It was also averred in the complaint that

the accused used to come at the spot, hurl abusive language and

are bent upon grabbing the land. It is likely that they will attack

and incur loss to his employees working at the site. The

complainant prayed that the land in question may be attached

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under Section 145 Cr.P.C. and a competent officer be appointed as

Receiver of the land as per the provision of Section 146 Cr.P.C.

The Sub-Divisional Officer (North), Bikaner appointed the

SHO, Napasar as Receiver over the land by a detailed order dt.

10.02.2022. The petitioners preferred a revision petition before

the court of learned Additional Sessions Judge No.5, Bikaner

against the order of Sub-Divisional Officer, which was too

dismissed on 30.03.2022.

Learned counsel for the petitioners submits that the

complainant has obtained the registry of the land in his favour

fraudulently. He made stop-payment request to his bank and thus,

the petitioners were not paid the entire consideration amount of

the land. It is further contended that the learned Sub-Divisional

Officer as well as the learned reivional court have not considered

the matter in correct perspective. A civil suit is already pending

between the parties and during the pendency of the civil suit, the

proceedings under Sections 145, 146 of Cr.P.C. cannot be initiated.

In support of his arguments, learned counsel for the petitioner has

placed reliance on the judgment of Hon'ble Supreme Court

rendered in the case of Mohd. Abid & Ors. Vs. Ravi Naresh & Ors.

[2022 LiveLaw (SC) 921]. It is prayed that the order dt.

10.02.2022 passed by Sub-Divisional Officer as well as order dt.

30.03.2022 passed by learned Additional Sessions Judge may be

quashed.

Learned Public Prosecutor and learned counsel for the private

respondents have supported the impugned orders and submitted

that learned Sub-Divisional Officer as well as learned revisional

court while considering each and every aspect of the matter have

[2023/RJJD/010396] (4 of 6) [CRLMP-2671/2022]

passed the orders impugned, which require no interference by this

court. The proceedings under Section 145 Cr.P.C. before the Sub-

Divisional Officer (North), Bikaner is going on and the possession

of the land is with the Receiver for more than one year. In these

circumstances, the orders of courts below may not be quashed.

I have considered the arguments advanced before me and

carefully gone through the material available on record.

The Sub-Divisional Officer (North), Bikaner appointed SHO,

Police Station Napasar as Receiver on 10.02.2022. The learned

Sub-Divisional Officer specifically mentioned in its order that there

is a dispute and heavy stress between the parties regarding actual

possession of the disputed land, and public peace and tranquility

can be disturbed anytime by way of brawl. In my considered

opinion, the proceedings under Sections 145/146 Cr.P.C. are

quasi-civil and quashi-criminal in nature. The purpose of the

provisions is to provide a speedy and summary remedy so as to

prevent a breach of the peace by submitting the dispute to the

Executive Magistrate, whereas, in the civil suit, the rights of the

parties are determined. The revision petition preferred by the

petitioners was too dismissed by learned Additional Sessions

Judge No.5, Bikaner by a well reasoned order.

Hon'ble Supreme Court in the case of Shanti Kumar Panda

Vs. Shakuntala Devi, reported in AIR 2004 SC 115 in somewhat

similar circumstances held as under:-

"Possession is nine points in law. One purpose of the enforcement of the laws is to maintain peace and order in society. The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law in own hands by members of society. A dispute relating to any land etc. as defined in sub-section (2) of Section 145 having arisen, causing a

[2023/RJJD/010396] (5 of 6) [CRLMP-2671/2022]

likelihood of a breach of the peace, Section 145 of the Code authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The proceedings under Sections 145/146 of the Code have been held to be quasi-civil, quasi-criminal in nature or an executive on police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in proviso to sub- section (4) of Section 145, and maintain the status quo as to possession until the entitlement to possession was determined by a court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simpliciter; so also the Executive Magistrate would refuse to interfere if there is no likelihood of breach of the peace or if the likelihood of breach of peace though existed at a previous point of time, had ceased to exist by the time he was called upon to pronounce the final order so far as he was concerned."

The judgment cited by learned counsel for the petitioner in

the case of Mohd. Abid (supra) is altogether different from the

facts of the present case and is not applicable to this case. In the

said judgment, the petitioners therein had filed a suit for

injunction, in which an ad interim injunction had already been

granted by the civil court, therefore, Hon'ble the Supreme Court

held that the proceedings under Section 145 & 146 Cr.P.C. cannot

proceed, whereas, in the instant case, though a civil suit is

pending between the parties but no ad interim injunction has been

granted by the civil court.

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In view of the above, I do not find that the orders under