Rajasthan High Court - Jodhpur
Urn: Crlr / 2524U / 2008Harjee vs State And Anr on 18 May, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:23467]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1161/2008
Legal representatives of Late Shri Harjee:
i. Smt. Tipu devi wife of Late Shri Harjee [Wife],
ii. Magan lal son of Late Shri Harjee [Son],
iii. Ranchod ram son of Late Shri Harjee,
iv. Moti lal son of Late Shri Harjee [Son],
v. Ratan lal son of Late Shri Harjee [Son],
vi. Sohan lal son of Late Shri Harjee [Son], Resident of Village
Asaawa, Tehsil Reodar, District Sirohi.
vii. Smt. Janma devi wife of Shri Rama ram ji, by caste Ghanchi,
resident of Village Mal gaon, Tehsil Reodar, District Sirohi.
[Daughter].
----Petitioner
Versus
1. State of Rajasthan.
2. Dev Shankar son of Shri Pitambar, by caste Brahmin, resident
of Village Asaawa, Tehsil Reodar, District Sirohi.
----Respondent
For Petitioner(s) : Mr. Suresh Kumbhat
Mr. PK Sharma
Mr. Sheetal Kumbhat
Mr. Naman Bhansali
For Respondent(s) : Mr. Rajesh Shah
Mr. SriRam Choudhary, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
DATE OF CONCLUSION OF ARGUMENTS : 09/04/2026
DATE ON WHICH ORDER IS RESERVED : 09/04/2026
FULL ORDER OR OPERATIVE PART : Full Order
DATE OF PRONOUNCEMENT : 18/05/2026
BY THE COURT:-
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1. The instant criminal revision petition under Sections 397 and 401 of the CrPC has been preferred by the legal representatives of the original petitioner assailing the order dated 23.09.2008 passed by the learned Sessions Judge, Sirohi in Criminal Revision No.25/2008, whereby the learned revisional Court, while allowing the revision petition preferred by respondent No.2, proceeded to set aside the order dated 03.04.2008 passed by the learned Sub- Divisional Magistrate, Reodar in Criminal Proceeding No.1/2002. Vide the aforesaid order, the learned Sub-Divisional Magistrate recorded a categorical finding that no apprehension of breach of peace subsisted between the parties in respect of the land in dispute and consequently directed restoration of possession thereof in favour of the present petitioners.
2. The succinct facts giving rise to the present petition are that on a complaint submitted by the S.H.O., Police Station Anadara under Sections 145 and 146 Cr.P.C. regarding the disputed land bearing Khasra No.587 situated at Village Asawa, proceedings were initiated by the learned S.D.M., Sirohi vide order dated 26.07.1994 and the land was attached under Section 146 Cr.P.C. After appreciation of the oral and documentary evidence adduced by the parties, the learned S.D.M. vide order dated 03.04.2008 held the petitioner Harjee to be in actual and peaceful possession of the disputed land prior to the preliminary order and directed restoration of possession to him. Aggrieved thereby, the respondent No.2 preferred Criminal Revision No.25/2008 before the learned Sessions Judge, Sirohi, who vide impugned order dated 23.09.2008 reversed the findings of the learned S.D.M. and (Uploaded on 19/05/2026 at 12:02:49 PM) (Downloaded on 20/05/2026 at 10:07:53 PM) [2026:RJ-JD:23467] (3 of 10) [CRLR-1161/2008] directed handing over possession to respondent No.2, hence the present petition.
3. Heard learned counsel appearing on behalf of the parties and perused the material available on record.
4. Upon appreciation of the oral as well as documentary evidence available on record, it is evident that the learned Sub- Divisional Magistrate recorded a categorical finding that the disputed land bearing Khasra No.587 admeasuring 8 Bigha 13 Biswa was regularized in favour of party No.1 Harjee by Gram Sabha, Asawa vide Patta dated 17.06.1989 and possession thereof was also handed over to him. The learned Magistrate further found that the petitioner Harjee had proved his lawful and actual possession over the disputed land by producing the original patta and Passbook, whereas respondent Devshanker failed to adduce any cogent or reliable evidence regarding his possession. The learned S.D.M. also observed that at the time when possession of the land was taken under the attachment proceedings on 09.08.1994, standing crop of "Guar" sown by Harjee was found existing on the spot, thereby establishing his actual cultivatory possession. It was further held that Devshanker had failed to establish as to which specific portion of the land was allegedly under his possession and no Jamabandi or boundary demarcation report was produced by him. Consequently, the learned S.D.M. concluded that Harjee was in lawful, peaceful and actual possession of the disputed land prior to the preliminary order and within two months preceding the institution of proceedings under Section 145 Cr.P.C., that no imminent apprehension of breach of (Uploaded on 19/05/2026 at 12:02:49 PM) (Downloaded on 20/05/2026 at 10:07:53 PM) [2026:RJ-JD:23467] (4 of 10) [CRLR-1161/2008] peace subsisted between the parties and accordingly directed release of the attached land from receivership and restoration of possession to petitioner Harjee.
5. The learned revisional Court appears to have been swayed merely by the circumstance that the possession of Harjee was alleged to be unauthorized and, proceeding on such premise, chose to set aside the order passed by the learned SDM under Sections 145 and 146 Cr.P.C.
6. This Court is of the considered opinion that the revisional Court fell in manifest error while exercising its jurisdiction. A careful perusal of the material available on record reveals that respondent-Devshankar himself had lodged FIR in 1994 alleging criminal trespass against the present petitioners and pursuant thereto, a charge-sheet also came to be filed against them. The conclusion reflected in the charge-sheet clearly indicates that possession over the disputed land was found to be with petitioner- Harjee. Whether such possession was lawful or unlawful is essentially a matter falling within the exclusive domain of the competent civil Court and the same cannot be conclusively adjudicated in proceedings under Sections 145 and 146 Cr.P.C. Nonetheless, for the limited purpose of proceedings relating to breach of peace and determination of actual possession, the material on record sufficiently establishes that possession of the disputed property was with Harjee at the relevant point of time. Further, this Court cannot remain oblivious of the "Site Inspection Report" dated 03.08.1994 prepared pursuant to the order of the learned SDM, in presence of both the parties by the concerned (Uploaded on 19/05/2026 at 12:02:49 PM) (Downloaded on 20/05/2026 at 10:07:53 PM) [2026:RJ-JD:23467] (5 of 10) [CRLR-1161/2008] Tehsildar, wherein it has been specifically recorded that crop of "Guar" standing over land measuring 5 bighas was found to have been sown by petitioner-Harjee. Evidently, cultivation over such a substantial parcel of land could not have materialized overnight and the said contemporaneous document lends adequate assurance to the claim of actual possession of petitioner. The revisional Court, while upsetting the well-reasoned order passed by the learned SDM, failed to appropriately appreciate the aforesaid material evidence and consequently committed a patent error of law as well as jurisdiction.
7. 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 (Uploaded on 19/05/2026 at 12:02:49 PM) (Downloaded on 20/05/2026 at 10:07:53 PM) [2026:RJ-JD:23467] (6 of 10) [CRLR-1161/2008] 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:
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 (Uploaded on 19/05/2026 at 12:02:49 PM) (Downloaded on 20/05/2026 at 10:07:53 PM) [2026:RJ-JD:23467] (7 of 10) [CRLR-1161/2008] 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 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 (Uploaded on 19/05/2026 at 12:02:49 PM) (Downloaded on 20/05/2026 at 10:07:53 PM) [2026:RJ-JD:23467] (8 of 10) [CRLR-1161/2008] 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 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 (Uploaded on 19/05/2026 at 12:02:49 PM) (Downloaded on 20/05/2026 at 10:07:53 PM) [2026:RJ-JD:23467] (9 of 10) [CRLR-1161/2008] 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 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."
8. In light of the foregoing discussion, the order dated 23.09.2008 passed by the learned Sessions Judge, Sirohi is set (Uploaded on 19/05/2026 at 12:02:49 PM) (Downloaded on 20/05/2026 at 10:07:53 PM) [2026:RJ-JD:23467] (10 of 10) [CRLR-1161/2008] aside. The order dated 03.04.2008 passed by the Sub-Divisional Magistrate, Reodar is affirmed and restored.
9. Accordingly, the instant petition is hereby allowed.
10. Stay petition and any pending applications stands disposed of.
(FARJAND ALI),J 71-Mamta/-
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