Rajasthan High Court - Jodhpur

Rajvindra Kaur And Anr vs State And Ors on 9 April, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:53220]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Misc(Pet.) No. 1723/2012

1. Rajvindra Kaur w/o Mahendra Singh, Resident of 1 C Badi,
District Sri Ganganagar.
2. Mahendra Singh S/o Kartar Singh, Resident of 1 C Badi,
District Sri Ganganagar
2/1. Rajvindra Kaur W/o. Mahendra Singh, resident of 1 C Badi,
District Sri Ganganagar.
2/2. Jagwant Kaur D/o. Mahendra Singh, resident of 1 C Badi,
District Sri Ganganagar.
2/3. Randheer Singh S/o. Mahendra Singh, resident of 1 C Badi,
District Sri Ganganagar.
2/4. Pradeep Singh S/o. Mahendra Singh, resident of 1 C Badi,
District Sri Ganganagar.
2/5. Rupendir Singh S/o. Mahendra Singh (Deceased)


                                                                   ----Petitioner
                                    Versus
1. State of Rajasthan through the Public Prosecutor
2. Bhajan Singh S/o Kartar Singh
3. Pyara Singh S/o Kartar Singh
4. Bhajno Bai D/o Kartar Singh
5. Sarjeeto Bai D/o Kartar Singh
6. Mahendra Kaur D/o Kartar Singh
7. Gurmeet Kaur D/o Kartar Singh
8. Ram Singh S/o Bachan Singh
9. Dilawar Singh S/o Bachan Singh
10. Gurnam Singh S/o Bachan Singh
11. Hukmi Bai D/o Bachan Singh
12. Prakash Kaur D/o Bachan Singh
All Resident of 1 C Badi, District Sri Ganganagar.
13. Naib Tehsildar, Hindumalkot, District SriGanganagar.


                                                                 ----Respondent


For Petitioner(s)         :     None Present
For Respondent(s)         :     Mr. Vikram Singh Rajpurohit, Dy.G.A.
                                Mr. Ravindra Singh, AGA




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                HON'BLE MR. JUSTICE FARJAND ALI

Order

Order Reserved on : 03/12/2024 Order Pronounced on : 09/04/2025

1. The instant criminal misc. petition under Section 482 Cr.P.C.

has been preferred by the petitioner challenging the order dated

25.06.2012 passed by Sub-Divisional Magistrate, Sriganganagar in

Case No. 07/2011 whereby directions for giving possession of the

land in question to the petitioners has been refused.

2. Briefly stating the facts of the case are that the petitioners

have filed the present petition challenging the order dated

25.06.2012 passed by the SDM, Sri Ganganagar, who refused to

direct the return of possession of land measuring 5.13 bighas to

them. The land in question was originally gifted by Sh. Kartar

Singh to Petitioner No. 1 through a registered gift deed dated

12.08.2008, and the petitioner had been in possession of the

same for the past 15-20 years. However, due to a dispute raised

by other legal heirs, proceedings under Section 145 Cr.P.C. were

initiated, and the SDM passed an order on 11.07.2011 for

attachment of the total 24 bighas of land, appointing the Naib

Tehsildar as receiver and possession was taken from both parties

on 20.08.2011. The SDM's attachment order was subsequently

quashed by the learned Sessions Judge on 07.09.2011, with

directions for restoration of possession to the rightful parties.

Despite repeated applications, court orders, and official

communications, respondent No. 13 (Naib Tehsildar) failed to

return possession to the petitioners and even allegedly demanded

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money, prompting a complaint to the Anti-Corruption Bureau. The

petitioners assert that this conduct amounts to abuse of process

by public authorities, causing them irreparable harm. They seek

quashing of the impugned order dated 25.06.2012 and

appropriate directions for the return of possession of the land in

question.

3. Heard learned counsels for the parties and learned public

prosecutor appearing on behalf of the State as well as perused the

material available on record.

4. The issue involved in this matter has already been dealt by

this Court in Mohammad Ramjan and Ors. v. State of

Rajasthan and Ors. [S.B. Criminal Misc. Petition No.

4499/2023]. For convenience, it is appropriate to reproduce the

order dated 13.03.2024 passed by this Court. For ready reference,

the relevant paragraphs of the order are reproduced herein

below:-

"2. .............. It would be pertinent to note here that before initiating the proceeding under Section 145 Cr.P.C. or moving an application under Section 146(1) of the Cr.P.C., criminal cases suggesting eminent danger of breach of peace or like circumstance to presume instant threat to public peace and tranquility had not been lodged. The law in respect of proceeding under Sections 145 & 146 Cr.P.C. is no more res-integra that before initiating any proceeding under Sections 145 & 146 Cr.P.C. there has to be a serious question of possession and a situation where it is not comprehensible as to which party was in possession of the land in question at the relevant point of time or the circumstances suggesting that parties are bent upon to take forcible possession of the immovable property and therefore, there is an eminent danger to public peace and tranquility. The law in this regard has been discussed and dealt with by this Court in the matter of

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Ashoknath Chela Kevalnath Vs. State of Rajasthan decided on 16.11.2022. The relevant part of the order is being reproduced as under:

"The law on this point is not res integra that whenever an Executive Magistrate is satisfied from a report of the Police Officer or upon other information that a dispute which is likely to cause breach of 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 with regard to the fact of actual possession of the subject of dispute. Upon appearance of the parties, the Executive Magistrate is supposed to consider the claims of the rival parties in respect of the fact of actual possession of the subject of dispute. It is the requirement of law that prior to passing any order of attachment of the property and appointment of a receiver, the Magistrate should apply his mind as to whether there are emergent circumstances and eminent danger of breach of peace or not and order of attachment of property and appointment of a receiver under Section 146(1) Cr.P.C. can be passed only after conducting a preliminary inquiry under Section 145(1) Cr.P.C. The Executive Magistrate is not supposed or rather authorized by the law to adjudicate the right or title of any party over the property in question. The Executive Magistrate is not empowered to pass order of taking the possession from one party and deliver it to the other party or to the receiver, if the question of possession is not under dispute. There is a distinction between right to have possession and question of possession. Right to possession can be decided by a competent Civil/Revenue Court after adjudication of the issues and pleas of the parties to the lis and then it can pass a verdict as to which party has a right to have possession but when it comes to question of possession and the Executive Magistrate is satisfied that none of the parties were then in such possession or the Magistrate was unable to satisfy himself as to which of them was in possession of the subject of dispute and by placing facts strong apprehension

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has been shown regarding breach of peace and tranquility in respect of the conflict of possession then the Executive Magistrate can very well exercise power under Sections 145 Cr.P.C. and 146(1) Cr.P.C. The Executive Magistrate is required to record satisfaction of emergent nature of the case as well as eminent danger of breach of peace or tranquility before passing an order of attachment."

3. After making anxious consideration of the submissions made at the Bar and after considering the peculiar facts and circumstances of the case and the legal position in this regard, this Court feels that infact no danger of peace or apprehension of affray had been noticed and no eminent circumstances were appearing which may persuade the SHO of the police station concerned to move a complaint for initiation of proceedings under Sections 145 & 146 of the Cr.P.C. Simply, mentioning the word "emergent circumstance" or 'eminent danger of breach of peace and tranquility' would not be sufficient enough rather the apprehension is required to be well founded based on certain facts. It can be seen from the facts and circumstances of each individual case and the same may vary case to case. Here, in these cases, there was no blood shed or no counter criminal cases got registered with regard to possession of the land. On the contrary, it is reflecting that only a particular portion of land was purchased by the respondents in the Year 2019 but they could not get possession of the same because the said land was under

hypothetication with the Bank. It is further revealing that when the due installments were not deposited by the debtor, the buyer went to lodge an FIR in this regard, however, nowhere it is averred that the buyer had obtained physical possession over the land in question. Although, the opinion of this Court is tentative for the above aspect and for final adjudication, this Court left it open for the trial Court to decide the same but at the same time, this fact cannot be ignored that even no proceedings under Sections 107, 116, 151 & 154 of the Cr.P.C. got initiated at the instance of any of the party so as to suggest apprehension of public peace and tranquility.

4. The proceeding under Sections 145-146 Cr.P.C. are not made for the purpose of taking possession of immovable property from one person and handing over the same to the other person. Who is the person best entitled to get the possession and for that

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matter, examining the right to possession; is an issue required by the law to be dealt with by a Civil or Revenue Courts. The Executive Magistrates are not empowered to do so that too without dealing with the question of ownership and proprietary right to have possession.

5. Having not considering the above legal aspect, the learned Executive Magistrate committed a patent error of law in passing the orders impugned so also having not taken into account the settled legal position; the Court of revision has also erred in passing the orders dated 26.06.2023 and, therefore, in my opinion, until the legal requirements are fulfilled, the impugned order under Section 146(1) of the Cr.P.C. cannot be continued. It is observed that no civil case either for possession or for declaration of the suit property has been filed thus, it is not comprehensible that as to how long the possession of the attached land would remain with the police officer because an order of appointing receiver in respect of the subject matter of the disputed land can be continued till the verdict of a civil Court regarding the right, title, interest and possession is passed. There is a fine distinction between the right to possession or question of possession. The right to possession can be adjudicated in a suit either by the civil Court or by the revenue Court, however, whenever a complex question as to which party is in possession comes, then proceeding under Section 145 Cr.P.C. can be initiated.

4. After considering the facts and circumstances of the instant case, it is observed that infact no question of possession was involved in the present matter, rather, it is reflecting that the other party wanted to get possession of the land in question which was purchased by them only three years ago or probably, the land could not got mutated in their names because of a charge of hypothetication with the Bank.

5. In light of the discussions and observations made herein above, the Misc. Petitions are allowed. The order dated 26.05.2023 passed by the learned Sub- Divisional Magistrate, Hanumangarh, in Cases No.01/2023 & 02/2023 as well as the order dated 26.06.2023 passed by the learned Additional Sessions No.2, Hanumangarh in Criminal Revision Petitions No.41/2023 & 42/2023 are hereby quashed and set aside. The SHO concerned is directed to release the land in question and hand over the same

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to the petitioners. The learned Sub-Divisional Magistrate, Hanumangarh would proceed with the proceedings under Section 145 of the Cr.P.C. and shall pass an order, after hearing the parties and adopting the procedure enumerated in the Code of Criminal Procedure. It is made clear that the respondents would be at liberty to file a suit regarding possession of the land based on the sale deeds along with a prayer for partition of the same. The stay petitions stand disposed of."

5. In view of the above judgment, the instant criminal misc.

petition is allowed. The order dated 25.06.2012 passed by Sub-

Divisional Magistrate, Sriganganagar is hereby quashed and set

aside.

6. The State Agency is directed to handover the possession of

the property to the same party from which it was obtained in

pursuance of the initial order dated 11.07.2011 passed by Sub-

District Magistrate.

7. All applications, if any, stands disposed of.

(FARJAND ALI),J 4-Mamta/-