Rajasthan High Court - Jodhpur
Harchand Ram vs State Of Rajasthan on 18 November, 2022
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1374/2022
Harchand Ram S/o Sh. Nathu Ram, Aged About 50 Years,
Khinvaj Vas, Teh. Pokaran, Dist. Jaisalmer (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Parwti Devi W/o Bhoma Ram @ Bhom Singh, R/o Khinvaj
Vas, Teh. Pokaran, Dist. Jaisalmer (Raj.).
----Respondents
For Petitioner(s) : Mr. Dinesh Kumar Godara
For Respondent(s) : Mr. S.K. Bhati, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order 18/11/2022 By way of filing the instant Misc. Petition, challenge has been made to the order dated 10.02.2022 passed by the learned Additional District & Sessions Judge, Pokran in Criminal Revision No.14/2021 as well as the order dated 25.10.2021 passed by the learned Sub-Divisional Magistrate, Pokran in Case No.M7/2019 (Parvati Devi Vs. Harchand Ram & Ors.) whereby the application of the petitioner for detaching the property has been rejected and revision petition has been dismissed.
Learned counsel Shri Dinesh Kumar Godara appearing for the petitioner submits that the entire proceeding has been undertaken in direct conflict of law and the same has been done by going beyond jurisdiction. It is further submitted that although there was no imminent danger of breach of peace and tranquility yet upon a complaint made for initiation of proceeding under Section (Downloaded on 22/11/2022 at 08:49:22 PM) (2 of 6) [CRLMP-1374/2022] 145 (1) Cr.P.C., learned Executive Magistrate (SDM), Pokran vide its order dated 28.03.2019 directed to institute proceeding under Section 145 (1) Cr.P.C. and issued notice to the parties concerned. No order under Section 146 (1) of the Cr.P.C. i.e. no speaking order regarding attachment of property was passed despite that the SHO concerned took steps for attachment of property under colourable exercise of powers. The petitioner moved an application to the learned SDM, Pokran for releasing the property and submitted that the learned Court concerned has not passed any order of attachment, therefore, the property in question may be directed to be detached but the said application has been dismissed vide impugned order dated 25.10.2021.
Learned counsel Shri Godara further submits that aggrieved by the order dated 25.10.2021, the petitioner challenged legality, correctness and propriety of the order by way of filing a revision petition but even the learned Additional District & Sessions Judge, Pokran has also lost sight to appreciate the correct, legal and factual aspects of the matter and dismissed the Criminal Revision vide order dated 10.02.2022 thus, he submits that since both the order are patently illegal, passed without jurisdiction and without due application of judicial mind, therefore, continuance of the orders passed by the Courts below would surely amount to an abuse of process of law, therefore, to secure the ends of justice interference by this Court is called for.
Heard learned counsel for the petitioner as well as learned Public Prosecutor for the State. Perused the relevant material placed before me.
It is manifesting from the bare perusal of the order dated 28.03.2019 that while directing to institute proceeding under (Downloaded on 22/11/2022 at 08:49:22 PM) (3 of 6) [CRLMP-1374/2022] Section 145 (1) of the Cr.P.C., the learned SDM, Pokran had not passed any order under Section 146 (1) of the Cr.P.C. and no such finding or observations were made therein despite that the SHO Pokran proceeded to attach the property for which neither he was directed nor he was having any power to attach the same in accordance with the procedure established by law. It seems that the SHO, Pokran has acted in an arbitrary manner. When the application was moved for releasing the property, the learned SDM, Pokran did not apply its judicial mind and rejected the prayer for releasing the property from attachment in a very fanciful manner. When the order was challenged before the revisional Court even the learned Additional District & Sessions Judge, Pokran, in a very capricious manner, rejected the revision while ignoring the factual and legal aspects of the matter. The approach of the learned SDM, Pokran as well as learned Additional District & Sessions Judge, Pokran cannot be appreciated, rather this Court feels deep aversion to the manner in which the orders have been passed by the Courts below as the same is bad in the eyes of law.
A plain reading of the provision under Section 145 of the Cr.P.C. provides that whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information that a dispute likely to cause a breach of peace exists consisting any land or water for the boundaries thereof, within his legal 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 a pleader. Upon appearance of the parties, the Executive Magistrate is required to consider the claims of the respective parties in regard to the fact of actual (Downloaded on 22/11/2022 at 08:49:22 PM) (4 of 6) [CRLMP-1374/2022] possession of the subject of dispute. Precisely, under Section 145 (1) Cr.P.C., the Executive Magistrate institutes the proceeding before him after becoming cognizant of dispute regarding land or water and threat of breach of peace. At this stage, this Court refrains from passing any observation in respect of the institution of the proceeding as it would be the exclusive domain of the Magistrate to conduct the inquiry and to pass a justifiable order after adjudication of the dispute. The powers to attach subject of dispute and to appoint receiver are provided under Section 146 (1) of the Cr.P.C. which envisages that if the Magistrate at any time after passing the order under sub-section (1) of Section 145 Cr.P.C. considers the case to be one of emergency or if he decides that none of the parties was then in such possession against whom the proceeding under Section 145 (1) of the Cr.P.C. was instituted or if the Executive Magistrate is not satisfied as to which of the parties was then in such possession of the subject of dispute, he may pass an order of attachment of the subject of dispute till the rights of the parties were not determined by the Competent Court in respect to the question as to which party was entitled to the possession. Suffice it would be to say that the provisions under Sections 145 and 146 of the Cr.P.C. are distinct; while Section 145(1) of the Cr.P.C. is regarding cognizance for institution of the proceeding, on the other hand, before passing an order under Section 146 (1) Cr.P.C., it is incumbent upon the Executive Magistrate to record his satisfaction that none of the parties were then in such possession or he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute. Through a plethora of judicial pronouncements, it has become a settled preposition of law that (Downloaded on 22/11/2022 at 08:49:22 PM) (5 of 6) [CRLMP-1374/2022] both the orders i.e. under Sections 145 (1) & 146 (1) of the Cr.P.C., are required to be passed separately. It can be done on the same day, on the same paper but both the orders are required to be passed distinctly. In other words, the Executive Magistrate is under a legal obligation to pass an order of institution of proceeding under Section 145 (1) of the Cr.P.C. and then he is required to record satisfaction of emergent nature as well imminent danger of breach of peace or tranquility before passing an order of attachment. It is manifesting from a bare perusal of the order dated 28.03.2019 that it was an order under Section 145 (1) Cr.P.C. for institution of the proceeding and notices were issued to the parties requiring them to produce their respective claims with regard to the possession over the questioned plot. There is no whisper or even not an iota of evidence with regard to nature of emergency and even not a word has been mentioned for attachment of property despite that the SHO concerned has proceeded to usurp possession from the petitioner. The possession was taken from the petitioner forcibly without any legal order and without having any authority to do so. This Court declared the action of the SHO concerned to be in utter disregard of the process of law. Furthermore, when the property was snatched from the petitioner, he moved an application before the Executive Magistrate to direct the SHO to handover the possession back to the petitioner but it seems that the Executive Magistrate, in a flagrant way, disregarded the earlier order and without adverting to the earlier order has rejected the prayer of the petitioner vide judgment dated 25.10.2021. Again, to the utter dismay of this Court, the learned Additional District & Sessions Judge, Pokran dismissed the revision petition without formal (Downloaded on 22/11/2022 at 08:49:22 PM) (6 of 6) [CRLMP-1374/2022] application of mind. The instant case is a glaring example of an abuse of process of law.
Considering the overall facts and circumstances of the case, this Court is of the considered view that the SHO concerned had exceeded his jurisdiction while making attachment of the property. The SDM, Pokran acted in a capricious manner and passed the order in perversity as well as the learned Additional District & Sessions Judge, Pokran has also failed to consider the niceties of the matter. Thus, continuance of the orders impugned tantamounts to an abuse of process of law and the same deserves to be quashed and set aside.
Accordingly, the Misc. Petition succeeds and is allowed. The order dated 10.02.2022 passed by the learned Additional District & Sessions Judge, Pokran in Criminal Revision No.14/2021 as well as the order dated 25.10.2021 passed by the learned Sub- Divisional Magistrate, Pokran in Case No.M7/2019 (Parvati Devi Vs. Harchand Ram & Ors.) are hereby quashed and set aside. The Superintendent of Police, Jaisalmer is directed to depute a responsible officer who is not below the rank of RPS to release the property from attachment within next 10 days from the date of receipt of this order. It is expected from the Superintendent of Police, Jaisalmer that, adverting to the patent illegality/inaction of the concerned SHO, he shall take suitable action against the erring officer.
(FARJAND ALI),J 193-Mamta/-
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