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 (Downloaded on 08/05/2025 at 09:22:17 PM) [2025:RJ-JD:20210] (2 of 10) [CRLR-464/2017] 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 (Downloaded on 08/05/2025 at 09:22:17 PM) [2025:RJ-JD:20210] (3 of 10) [CRLR-464/2017] 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 (Downloaded on 08/05/2025 at 09:22:17 PM) [2025:RJ-JD:20210] (4 of 10) [CRLR-464/2017] 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:(Downloaded on 08/05/2025 at 09:22:17 PM)
[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 (Downloaded on 08/05/2025 at 09:22:17 PM) [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 (Downloaded on 08/05/2025 at 09:22:17 PM) [2025:RJ-JD:20210] (7 of 10) [CRLR-464/2017] 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 (Downloaded on 08/05/2025 at 09:22:18 PM) [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 (Downloaded on 08/05/2025 at 09:22:18 PM) [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 (Downloaded on 08/05/2025 at 09:22:18 PM) [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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