Rajasthan High Court - Jodhpur
Rameshwarlal vs State Of Rajasthan on 9 May, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:21972]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1217/2025
Rameshwarlal S/o Shri Suganaram, Aged About 70 Years, Ward
No. 9 Khari Charnan, Distt. Bikaner (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. The Distt. Collector, Bikaner, Distt. Bikaner (Raj.)
3. The Assistant Collector-Cum-Sub-Division Officer, Kolayat,
Distt. Bikaner (Raj.)
4. The Tehsildar (Revenue), Tehsil Kolayat, Distt. Bikaner
(Raj.)
5. The Sho, P.s. Gajner, Distt. Bikaner (Raj.)
6. Kojuram S/o Shri Jaisaram, Ward No. 2, Khari Charnan,
Tehsil And Distt. Bikaner (Raj.)
----Respondents
For Petitioner(s) : Mr. Sandeep Bishnoi
For Respondent(s) : Mr. S.S. Rathore, Dy.G.A.
Mr. Vineet Jain, Sr. Advocate with
Mr. Harshvardhan Singh
HON'BLE MR. JUSTICE FARJAND ALI
Order
Order Reserved on : 06/05/2025
Order Pronounced on : 09/05/2025
1. The instant criminal miscellaneous petition under Section
528 CrPC has been filed by the petitioner, challenging the order
dated 24.12.2024 passed by the Assistant Collector-cum-SDM,
Kolayat, and the communication dated 03.01.2025 issued by
Respondent No.3 under Section 164 of the BNSS (corresponding
of Section 145 of CrPC), whereby Respondent No.3 appointed the
[2025:RJ-JD:21972] (2 of 9) [CRLMP-1217/2025]
Tehsildar (Revenue), Kolayat (Respondent No.4) as receiver and
directed him to take possession of the land in question from the
petitioner.
2. Briefly stating the facts of the case are that the petitioner
was allotted 50 Bighas of Barani agricultural land situated in
Village Rohi Khari Charnan, District Bikaner on 29.09.1975 under
Rule 47 of the Rajasthan Tenancy (Fixation of Ceiling on Land)
(Government) Rules, 1963 by the SDO (South), Bikaner. After full
payment, possession was handed over and khatedari rights
accrued, but revenue records continued to reflect the land in the
name of the State. The petitioner filed a suit before the SDO,
Kolayat for correction of records and permanent injunction, which
was decreed on 08.02.2022 in his favour. The Private Respondent
No. 6, who was not a party in the original suit, filed an appeal
before the Revenue Appellate Authority, Bikaner which was
dismissed on 27.12.2022 for lack of locus standi. A revision
petition was then filed before the Board of Revenue, Ajmer, where
a status quo order was passed on 30.01.2023, and the matter
remains pending. Subsequently, Respondent No. 6 filed complaints
before the ACB and local MLA, resulting in administrative inquiries.
Aggrieved by these proceedings, the petitioner filed S.B. Civil Writ
Petition No. 21616/2024, in which a stay order was granted on
14.01.2025. Despite this, a complaint under Section 164 BNSS
was filed by the SHO, Gajner, leading to an order dated
24.12.2024 by the SDO, Kolayat appointing the Tehsildar as
Receiver of the land and directing possession to be taken. The
[2025:RJ-JD:21972] (3 of 9) [CRLMP-1217/2025]
petitioner, aggrieved by these developments, has filed the present
petition.
3. Heard learned counsel for the petitioner and learned counsel
for the respondent as well as Public Prosecutor for the State and
perused the material available on record.
4. Upon perusal of the material available on record, it is evident
that Respondent No. 6, Kojuram, filed a complaint under Section
164 of the BNSS, based on which the SHO initiated further
proceedings. This Court specifically posed a question to the
counsel for the respondent as to whether Kojuram has any right,
title, interest, or possession over the land in question. If not, then
what locus does he have to interfere in the matter? This Court is
not commenting on possession per se; however learned Sub-
Divisional Officer, Kolayat, vide judgment dated 08.02.2022,
allowed the revenue suit and decreed it by declaring the present
petitioner as the khatedar tenant and clearly records that the
petitioner is in possession of the land. It is pertinent to note that
the matter is currently pending before the Revenue Board, which
has passed an order directing the parties to maintain status quo
over the land in question. With respect to possession, there exists
a legal declaration through the said decree, which remains
operative and cannot be disregarded. Moreover, the land has been
allotted in favour of the petitioner, leaving no occasion for the SHO
to file a complaint under Section 164 of the BNSS. It was
incumbent upon the learned Magistrate to apply judicial mind and
consider whether there existed any imminent danger, law and
order situation, or likelihood of bloodshed justifying the initiation
[2025:RJ-JD:21972] (4 of 9) [CRLMP-1217/2025]
of such proceedings. When no one else claims possession, the
very foundation of a "dispute of possession" becomes
questionable. Thus, the invocation of jurisdiction by the SDM
appears not only unnecessary but also amounts to unwarranted
interference and it reflects a clear case of an act beyond
jurisdiction.
5. The issue regarding Section 164 and 165 of BNSS
(corresponding of Section 145 and 146 of CrPC respectively)
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 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
[2025:RJ-JD:21972] (5 of 9) [CRLMP-1217/2025]
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 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
[2025:RJ-JD:21972] (6 of 9) [CRLMP-1217/2025]
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 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
[2025:RJ-JD:21972] (7 of 9) [CRLMP-1217/2025]
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 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."
6. In the case of Ram Sumer Puri Mahant v. State of U.P.
and Ors. reported in (1985) 1 SCC 427, it was held that since
the civil proceedings are already going on in civil Court relating to
the question of possession then continuing a parallel criminal
proceedings is unjustified. The Court emphasized that the civil
court's decree is binding on the criminal court and that multiplicity
of litigation should be avoided.
7. In another case of Kanya Bai v. Prahlad passed in S.B. Cr.
Misc. Petition No. 688 of 1997 decided on 10.12.1997 by the
[2025:RJ-JD:21972] (8 of 9) [CRLMP-1217/2025]
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 126 and 135 read
with 170 of BNSS.
8. After considering the facts and circumstances of the case, as
well as the legal principles discussed above, this Court finds that
when a civil suit concerning the title and possession of a disputed
property is already pending before a competent Civil Court,
initiating or continuing parallel proceedings under Section 164 of
BNSS is neither appropriate nor legally justified. Such parallel
proceedings amount to a needless duplication of efforts, leading to
unnecessary expenditure of public time and resources. The Civil
Court, being fully empowered to adjudicate disputes relating to
possession and ownership, can also grant appropriate interim
relief during the pendency of the suit. Moreover, any decision
rendered under Section 164 BNSS remains subordinate to the
outcome of the civil proceedings, as the orders of the Civil Court
are binding upon the criminal courts. Therefore, in the presence of
a pending civil suit, the continuation of proceedings under Section
164 BNSS serves no useful purpose and lacks any legal
foundation. This Court is of the considered view that until the
[2025:RJ-JD:21972] (9 of 9) [CRLMP-1217/2025]
rights of the parties are conclusively determined by a competent
Civil Court, the property of an individual cannot be arbitrarily
taken or handed over at the instance of a public servant under the
garb of Section 164 and 165 of BNSS, specially when there is no
question of possession involved and an imminent danger of breach
of peace apprehended.
9. In this view of the matter, order dated 24.12.2024 passed by
the Assistant Collector-cum-SDM, Kolayat and communication
dated 03.01.2025 issued by Respondent No.3 under Section 164
of the BNSS are hereby quashed and set aside.
10. Accordingly, the petition is hereby allowed
11. Stay petition stands disposed of.
(FARJAND ALI),J
22-Mamta/-
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