Rajasthan High Court - Jodhpur
Manish vs State Of Rajasthan ... on 17 February, 2023
Bench: Manoj Kumar Garg
[2023/RJJD/005825]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 8737/2022
1. Manish S/o Shri Jetha Ram, b/c Mali, Aged About 49
Years,
2. Jetha Ram S/o Heera Ram, b/c Mali, Aged About 62
Years,
Both are residents of Bada Kotecha Ps Mathaniya Dist.
Jodhpur
----Petitioners
Versus
1. State Of Rajasthan
2. Om Prakash S/o Mula Ram, Aged About 49 Years, B/c Mali
R/o Bada Kotecha Ps Mathaniya Dist. Jodhpur
----Respondents
For Petitioner(s) : Mr.Pradeep Choudhary, Adv.
For Respondent(s) : Mr.Mool Singh Bhati, PP
Mr.Dinesh Kumar Ojha, Adv,.
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
17/02/2023
The instant criminal misc. petition has been filed against the
order dt. 02.12.2022 passed by learned Sub-District Magistrate,
Osian, Distt. Jodhpur on an application submitted by the
respondent No.2 against the petitioners at Police Station
Mathaniya, whereby the learned Sub-Divisional Magistrate has
attached the land bearing Khasra No.107/3 situated at village
Bada Kotecha and appointed the SHO, P.S. Mathaniya as a
Receiver under Section 145 & 146 Cr.P.C.
Learned counsel for the petitioner submits that there is a
property dispute existing between the parties and the civil
[2023/RJJD/005825] (2 of 4) [CRLMP-8737/2022]
litigations are pending between the parties in the revenue court.
Learned counsel contended that a composite order under sub-
Section (1) of Sections 145 and under sub-Section (1) of Section
146 Cr.PC. cannot be passed, as an order of attachment under
sub-Section (1) of Sec. 146 can be passed only after the
preliminary order under sub-Sec. (1) of Section 145 Cr.P.C. had
already been passed by the Magistrate. Whereas, in the present
case, the learned SDM has passed a composite order, which is bad
in eye of law and the same deserves to be set aside. Learned
counsel has placed reliance on the judgment rendered by this
Court in the case of Asgarali Shabab & Arn. Vs. State of Rajasthan
& Anr., reported in 1985 Crl.L.J. 1982.
Learned Public Prosecutor and learned counsel for the
respondent No.2 have opposed the prayer of the petitioner.
I have considered the arguments advanced before me and
perused the material available on record.
Section 145(1) Cr.P.C. reads as under:-
"145. 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."
Section 146(1) Cr.P.C. reads as under:-
146. Power to attach subject of dispute and to appoint
receiver.
(1) If the Magistrate at any time after making the order
under sub- section (1) of section 145 considers the case to
[2023/RJJD/005825] (3 of 4) [CRLMP-8737/2022]
be one of emergency, or if he decides that none of the
parties was then in such possession as is referred to in
section 145, or if he is unable to satisfy himself as to which
of them was then in such possession of the subject of
dispute, he may attach the subject of dispute until a
competent Court has determined the rights of the parties
thereto with regard to the person entitled to the possession
thereof: Provided that such Magistrate may withdraw the
attachment at any time if he is satisfied that there is no
longer any likelihood of breach of the peace with regard to
the subject of dispute."
From perusal of the aforesaid provision of law, this Court is
of the opinion that an order of attachment cannot be passed
simultaneously in the sense that a Magistrate while initiating a
proceeding under Section 145 of Cr.P.C. cannot, at the same time
also make an order of attachment. An order of attachment has got
to be made subsequent to the initiation of the proceedings in the
circumstances mentioned in Sec. 146(1) of the Cr.P.C.
In the case of Asgarali Shabab (supra), this Court observed
as under:-
"13. We, therefore, conclude that the Magistrate can
pass a composite order of attachment on disputed
property under Sec. 146(1) while passing the
preliminary order under Sec. 145(1), Cr.P.C. But such
an order is only valid in the following circumstances:
(a) The order under Sec. 145(1) should be
separately drawn than the order under Sec.
146(1) Cr.P.C.
(b) That the order under Sec. 145(1) must precede
order under Sec. 146(1), Cr.P.C.
(c) XXX XXX XXX"
In the instant case, it appears from the order impugned
passed by the Sub District Magistrate that the learned SDM has
passed a composite order and he did not draw the order under
[2023/RJJD/005825] (4 of 4) [CRLMP-8737/2022]
Sections 145(1) and 146(1) Cr.P.C. separately. Thus, the order
impugned is per se illegal.
In view of above facts and circumstances of the case, the
impugned order dt. 02.12.2022 passed by learned Sub District
Magistrate, Osian is set aside and the matter is remanded back to
the SDM, Osian with a direction to pass a fresh order in the light
of the judgment passed by this Court in the case of Asgarali
Shabab (supra).
Accordingly, the criminal misc. petition is disposed of. Stay
petition also stands disposed of.
(MANOJ KUMAR GARG),J
184-NK/-
Powered by TCPDF (www.tcpdf.org)
