Ashok Kumar vs State And Ors (2025:Rj-Jd:25722) on 14 May, 2025

[Cites 16, Cited by 0]

Rajasthan High Court - Jodhpur

Ashok Kumar vs State And Ors (2025:Rj-Jd:25722) on 14 May, 2025

1. The instant criminal revision petition under Section 397 r/w 401 of Cr.P.C. has been preferred by the petitioner against the order dated 03.11.2004 passed by the learned Additional Sessions Judge, Abu Road, District Sirohi in Sessions Case No. 23/2004 whereby the revision petition has been allowed and quashed the order dated 23.08.2004 passed by SDM, Abu Parwat under Sections 145 and 146 of CrPC.

2. Briefly stating the facts of the case are that the petitioner filed a complaint under Sections 145 and 146 Cr.P.C. before the SDM, Mount Abu on 08.08.2002 against respondents No.2 to 4, alleging illegal dispossession from the Kumari Kaniya Temple, (Downloaded on 06/06/2025 at 09:48:52 PM) [2025:RJ-JD:25722] (2 of 8) [CRLR-74/2005] Delwara, Mount Abu. Following the accidental death of the previous Pujari, Sh. Amrit Rawal, on 24.09.2000, the petitioner was appointed as Pujari by the Pradhan Pujari. It was alleged that on 10.06.2002, respondents No.2 to 4, along with 25 other persons, forcefully assaulted the petitioner and his deaf and mute wife, outraged her modesty, looted valuables, and threw them out of their residential quarters near the temple. Thereafter, the respondents allegedly broke into the temple using a cutter, took unlawful possession of the premises, and locked the temple, depriving the local residents of their right to worship. A representation was made to the SDM and a criminal case bearing No.63/2002 was registered under Sections 323, 451, 506, and 143 IPC. The petitioner sought attachment of the disputed property and appointment of a receiver in view of the threat to public peace. Notices were issued but respondent No.2 initially evaded appearance, later filing preliminary objections claiming improper service and lack of maintainability of proceedings under Sections 145 and 146 Cr.P.C. on the ground that temple property cannot be subject to such proceedings. The SDM rejected the objections on 23.08.2004. However, in revision, the learned Additional District Judge, Mount Abu, vide order dated 03.11.2004, allowed the revision petition of respondent No.2, quashing both the SDM's order and the proceedings under Sections 145 and 146 Cr.P.C. The petitioner has now preferred the present revision petition against the said order. (Downloaded on 06/06/2025 at 09:48:52 PM)

[2025:RJ-JD:25722] (3 of 8) [CRLR-74/2005]

3. Heard learned counsel appearing on behalf of the petitioner and learned Public Prosecutor as well as perused the material available on record.

4. Upon a thorough examination of the records, it is evident that the petitioner was appointed following the demise of the principal pujari of the temple. He now claims to be the temple's priest and has also sought attachment of the disputed property. Although the petitioner was appointed by the Pradhan Pujari, he does not hold any rightful claim over the said property, as he continues to serve in the capacity of a servant and has not been formally appointed by the Devasthan Board, Sirohi. Furthermore, the invocation of Sections 145 and 146 of the CrPC necessitates a clear and present apprehension of a breach of peace or imminent danger, such as the likelihood of bloodshed. In the present case, where the petitioner neither has rightful possession nor any formal recognition, his claim over the property lacks legal merit and cannot be sustained under the aforementioned provisions.

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 (Downloaded on 06/06/2025 at 09:48:52 PM) [2025:RJ-JD:25722] (4 of 8) [CRLR-74/2005] 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:

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 (Downloaded on 06/06/2025 at 09:48:52 PM) [2025:RJ-JD:25722] (5 of 8) [CRLR-74/2005] 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 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 (Downloaded on 06/06/2025 at 09:48:52 PM) [2025:RJ-JD:25722] (6 of 8) [CRLR-74/2005] 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 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 (Downloaded on 06/06/2025 at 09:48:52 PM) [2025:RJ-JD:25722] (7 of 8) [CRLR-74/2005] 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."

6. After considering the facts and circumstances of the case, as well as the legal principles discussed above, this Court finds that, in the absence of any breach of peace or imminent danger thereof, initiating criminal proceedings under Sections 145 and 146 of the Cr.P.C. constitutes a misuse of the legal process. When the dispute pertains to the title and possession of the property, such matters fall within the exclusive jurisdiction of the competent civil court. The orders passed by the civil court are binding on the criminal courts. Therefore, this Court finds it appropriate to uphold the order passed by the learned Additional Sessions Judge. However, in the event of any apprehension of breach of public peace (Downloaded on 06/06/2025 at 09:48:52 PM) [2025:RJ-JD:25722] (8 of 8) [CRLR-74/2005] between the parties, appropriate action may be taken under Sections 107 and 116, read with Section 151 of the Cr.P.C (corresponding to Sections 126, 135 r/w 170 of BNSS respectively).

7. In this view of the matter, order dated 03.11.2004 passed by the learned Additional Sessions Judge, Abu Road, District Sirohi is hereby affirmed.

8. Accordingly, the instant petition is dismissed.

9. Stay applications, if any, stands disposed of.

(FARJAND ALI),J 1-Mamta/-

(Downloaded on 06/06/2025 at 09:48:52 PM) Powered by TCPDF (www.tcpdf.org)

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jodhpur