Rajasthan High Court - Jodhpur
Bhanwar Lal vs State And Anr on 2 May, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:20210]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 464/2017
Bhanwar Lal s/o Shri Patram, aged 42 years, r/o Rani Bazar,
Bikaner.
----Petitioner
Versus
1. State of Rajasthan
2. Kishnaram s/o Shri Mulluram, R/o Near Bafna Trust, Bikaner.
----Respondent
For Petitioner(s) : Mr. K.L. Thakur
Mr. Mool Singh
For Respondent(s) : Mr. S.D. Purohit
Mr. Ramsukh Mali
Ms. Shivani Mutha
Mr. Vikram Singh Rajpurohit, Dy.G.A.
Mr. Ravindra Singh, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
Judgment Reserved on : 24/04/2025
Judgment Pronounced on : 02/05/2025
1. The instant criminal revision petition has been preferred by
the petitioner against the order dated 09.03.2017 passed by the
learned Additional Sessions Judge No. 3, Bikaner in Criminal
Revision No. 77/2014 whereby the revision petition filed by
respondent no.2 was allowed and judgment dated 31.10.2014
passed by learned Sub-Divisional Magistrate, Bikaner in Criminal
Case No. 51/2003 was set aside whereby while disposing off the
complaint under Section 145 Cr.P.C., the learned Executive
Magistrate has declared the actual possession of the petitioner
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over the plots in dispute and while recalling the order to
attachment, directed the SHO, Police Station Gangashahar, District
Bikaner to hand over the possession of the plots in dispute to the
petitioner No.1.
2. Briefly stating the facts of the case are that the petitioner,
Bhanwarlal (Party No. 1), filed a complaint under Section 145 and
146 of the Cr.P.C. on 10.04.2003 before the Sub-Divisional
Magistrate (S.D.M.), Bikaner, alleging that he was in peaceful
possession of Plot Nos. 222 and 223 located in Sarva Sidhi Nagar
Scheme No. 1, Gangashahar, which he had purchased through
valid documents in 1985 and 2002 respectively. He claimed that
Kishnaram (Party No. 2) was attempting to forcibly take
possession of these plots, and had even issued threats on
09.04.2003, raising the likelihood of a breach of peace. Based on
a police report confirming the dispute, the learned S.D.M. ordered
attachment of the disputed plots under Section 146(1) Cr.P.C. on
28.04.2003 and appointed the S.H.O. as the receiver. Later,
Kishnaram appeared and submitted an agreement dated
01.05.2004 showing his claim on the land. On the basis of this,
the learned S.D.M. directed handing over possession of the land in
dispute to Kishnaram vide order dated 15.04.2010. The petitioner,
Bhanwarlal challenged this in revision, and the learned Additional
Sessions Judge set asided the order on 25.06.2010, remanding
the matter back for fresh proceedings under Section 145(4) Cr.P.C.
After leading evidence, the learned S.D.M. on 31.10.2014, passed
an order declaring the petitioner's right to possession and directed
that possession be restored to him. However, Kishnaram again
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made a challenge to this order, and the learned revisional court on
09.03.2017 allowed his petition by setting aside the S.D.M.'s
order. The petitioner being aggrieved by this, has now filed the
present revision petition under Section 397 Cr.P.C. before this
Court.
3. Heard learned counsels appearing on behalf of the parties
and learned public prosecutor for the State as well as perused the
orders passed by the courts below and material available on
record.
4. Upon perusal of the material available on record, it is evident
that possession was taken from the petitioner. The documents
clearly reflect that the petitioner submitted an application under
Sections 145 and 146 of the Cr.P.C., on which several orders were
passed. Ultimately, the order passed by the Additional Sessions
Judge No. 3, Bikaner, appears to be correct, wherein the order
dated 31.10.2014 passed by the Sub-Divisional Magistrate (SDM)
was dismissed. This Court has examined the case thoroughly and
gone through the orders placed on record and finds that no civil or
revenue proceedings concerning or questioning right, title, interest
and possession of the said property are pending before any
competent court. The order passed by the learned Additional
Sessions Judge also does not mention any such pending litigation.
This raises a pertinent question: Has the property of an individual
effectively been handed over to the police permanently or
indefinitely? At most, an order could have been passed
acknowledging a threat to public peace and directing that
possession be maintained by the police till such time as
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appropriate civil or revenue proceedings are initiated or
adjudicated or right to possession is finally decided. However, in
the present case, the order is silent on such a condition, leading to
the inference that possession of the property of a citizen has been
handed over to the police permanently--an action that is
impermissible under the scope of Sections 145 and 146 of the
Cr.P.C.
5. It is imperative to discuss the precedents set by Hon'ble the
Supreme Court concerning Sections 145 and 146 of Cr.P.C. and to
fully comprehend the legal position, it is necessary to first
reproduce these provisions, which are provided below for ready
reference:-
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.
(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 conspicuous place at or
near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or
the claims of any of the parties to a right to possess the subject
of dispute, persue 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:
[2025:RJ-JD:20210] (5 of 10) [CRLR-464/2017]
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 his 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 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 powers of the Magistrate to proceed under section 107.
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 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
[2025:RJ-JD:20210] (6 of 10) [CRLR-464/2017]
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.
(2) When the Magistrate attaches the subject of dispute, he may,
if no receiver in relation to such subject of dispute has been
appointed by any Civil Court, make such arrangements as he
considers proper for looking after the property or if he thinks fit,
appoint a receiver thereof, who shall have, subject to the control
of the Magistrate, all the powers of a receiver appointed under
the Code of Civil Procedure, 1908(5 of 1908):Provided that in the
event of a receiver being subsequently appointed in relation to
the subject of dispute by any Civil Court, the Magistrate--
(a) shall order the receiver appointed by him to hand over
the possession of the subject of dispute to the receiver
appointed by the Civil Court and shall thereafter discharge
the receiver appointed by him;
(b) may make such other incidental or consequential orders
as may be just.
From bare perusal of these Sections, this Court feels that
before initiating a proceeding under Section 145 Cr.P.C. or moving
an application under Section 146(1) of the Cr.P.C., circumstances
suggesting imminent danger of breach of peace or like
circumstance to presume instant threat to public peace and
tranquility has to be shown with the assistance of cogent and
reliable material. It should not be a vague or bald assertion rather
should be supported with strong material. 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
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is an imminent danger to public peace and tranquility. The law in
this regard has been discussed and dealt with by this Court in the
matter of Ashoknath Chela Kevalnath Vs. State of Rajasthan
passed in SBCRLMP No.1949/2022 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
[2025:RJ-JD:20210] (8 of 10) [CRLR-464/2017]
which of them was in possession of the subject of dispute and by
placing facts strong apprehension 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 Section 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."
6. In the case of Kanya Bai v. Prahlad passed in S.B. Cr.
Misc. Petition No. 688 of 1997 decided on 10.12.1997 by
the coordinate bench of this Court, Jaipur Bench, it was held that
when a party involved in a property dispute has approached a
competent court in a good faith for the determination of their
rights, and the court is capable of issuing appropriate orders
regarding the security of the property, then initiating criminal
proceedings is not warranted. However, if there is an
apprehension of a breach of public peace between the parties,
necessary action can be taken under Sections 107 and 116, read
with Section 151 Cr.P.C.
7. This Court is of the considered view that no incident of
bloodshed or breach of peace has occurred in the present case
with regard to retention or forceful taking possession of an
immovable property, therefore, initiation of proceedings under
Sections 145 and 146 of the Cr.P.C. appears to be unwarranted
and uncalled for. Furthermore, if the land in question admittedly
belongs to a private individual, then passing an order that fails
to specify the duration for which the property shall remain in
police custody renders the direction ex facie illegal, vague and
[2025:RJ-JD:20210] (9 of 10) [CRLR-464/2017]
unsustainable. Additionally, it is noted that there is no civil or
revenue litigation pending before any competent court
concerning the said property. Accordingly, continued possession
of the land by the police for forever, in the absence of any such
proceedings, is not justified rather an alien thing to the legal
notion. The documents available on record clearly indicate that
possession was initially taken from the petitioner. In such
circumstances, it would be just and proper to restore possession
to the petitioner. A minute reading of the order passed by
learned S.D.M. manifesting that there was neither any illegality
in that order nor was the same incorrect. It is felt that the
learned Court of Revision has committed a grave error of law in
exercise of its revisional jurisdiction. In these circumstances, this
Court shall not countenance the approach above and therefore
the order of learned Additional Sessions Judge deserved to be
and is hereby quashed and set aside.
8. The parties, however, shall be at liberty to approach the
competent court having jurisdiction to establish their respective
rights over the disputed property through lawful means.
9. Although no such apprehension has been brought to the
notice of this Court, nor is there any material on record
indicating the likelihood of breach of peace arising from the
property in question, it is nonetheless observed that, if any such
apprehension arise in the future, the appropriate authority shall
be at liberty to initiate appropriate proceedings under Sections
[2025:RJ-JD:20210] (10 of 10) [CRLR-464/2017]
126, 135, and 170 of the Bharatiya Nagarik Suraksha Sanhita
(BNSS), 2023, for the purpose of maintaining public peace and
order.
10. In view of the above discussion, the instant petition is
allowed. The order dated 09.03.2017 passed by the learned
Additional Sessions Judge No. 3, Bikaner is quashed and set
aside and judgment dated 31.10.2014 passed by learned Sub-
Divisional Magistrate, Bikaner is hereby restored.
11. Stay applications, if any, stands disposed of.
(FARJAND ALI),J
11-Mamta/-
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