Rajasthan High Court - Jodhpur
Vag Singh And Ors vs State And Ors on 16 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:30976]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1108/2009
1. Vag Singh
2. Hari Singh
Both Sons of Sh.Bechar
3. Tane Singh
4. Fateh Singh
Both Sons of Sh.Ridmal Singh
5. Sumer Singh S/O Sh. Vagh Singh
6. Dhanpat Singh S/O Sh. Shaitan Singh
All by caste Rajput & all residents of Village Hariyali, Tehsil
Sanchore,.District, Jalore.
----Petitioner
Versus
1. State of Rajasthan
2. Jabar Singh
3. Khim Singh
Both Sons of Sh. Lal Singh
4. Udai Singh
5. Bhawani Singh
6. Gopal Singh
All Sons of Sh. Jabar Singh.
7. Dalpat Singh
8. Mahendra Singh
Both Sons of Sh.Khim Singh.
All by caste Rajput & all residents of Village Hariyali, Tehsil
Sanchore, District Jalore
----Respondent
For Petitioner(s) : Mr. Chakrawati Singh
For Respondent(s) : Mr. Rajesh Choudhary
Mr. Shrawan Singh Rathore, DyGA
HON'BLE MR. JUSTICE FARJAND ALI
Order Judgment Reserved On : 15/05/2025 Judgment Pronounced On : 16/07/2025 (Downloaded on 23/07/2025 at 09:21:23 PM) [2025:RJ-JD:30976] (2 of 10) [CRLR-1108/2009]
1. The instant Criminal Revision Petition under Section 397 r/w 401 Cr.P.C. has been preferred by the petitioner against the order dated 3.10.2009 passed by Additional Session Judge, Bhinmal in Criminal Revision Petition No.16/2009, by which he allowed the revision petition and set-aside the order dated 24.8.2009 passed by the learned Sub-Division Magistrate, Sanchore by which the possession of the attached property in question was ordered to be handed over to the petitioners which in revision petition was ordered to be attached till the final disposal of the civil suit pending between the parties.
2. Briefly stating the facts of the case are that the present case arises out of a dispute regarding possession of a plot situated in Abadi, Village Hariyali. Based on a report submitted by the Station House Officer, Police Station Sanchore, the learned Sub-Divisional Magistrate, Sanchore initiated proceedings under Sections 145 and 146 of the Cr.P.C., attaching the disputed property. During the course of the enquiry, evidence was recorded, and upon evaluation, the learned SDM, vide order dated 24.08.2009, declared that the petitioners were in possession of the property 60 days prior to its attachment and thus set aside the earlier attachment order dated 15.01.2007, also removing the receiver appointed by the SHO. Aggrieved by this, the respondents filed a revision before the learned Additional Sessions Judge, Bhinmal, who, by an order dated 03.10.2009, allowed the revision, set aside the SDM's order, and directed that the property remain under attachment and receiver's possession until final adjudication of the civil suit pending before the competent civil court. Hence, (Downloaded on 23/07/2025 at 09:21:23 PM) [2025:RJ-JD:30976] (3 of 10) [CRLR-1108/2009] the petitioners have preferred the present Criminal Revision Petition challenging the said order dated 03.10.2009.
3. Heard learned counsels appearing on behalf of the parties and learned DyGA appearing on behalf of the State and perused the material available on record.
4. Upon a careful perusal of the material on record, it appears that the courts below proceeded as though they were required to adjudicate upon civil rights, which clearly falls outside the scope of proceedings under Sections 145 and 146 of the CrPC. Although there was an apprehension of breach of peace at the time of initiation, the same was neither immediate nor well-founded. It is observed that no incident had occurred prior to or after the alleged incident to substantiate the apprehension of breach of peace. The mere filing of a police report stating that some individuals entered the property in question is not sufficient to invoke the provisions of Sections 145 and 146 CrPC. For such action to be valid, the apprehension must be serious, well founded and supported by cogent material. The continuation of the receiver's possession for nearly two decades further reflects the improper and prolonged misuse of interim arrangements under these provisions.
4.2 It is also pertinent to note that the Sub-Divisional Magistrate exceeded his jurisdiction by venturing into questions of title, interest, and ownership, matters that exclusively fall within the domain of a competent civil court. The scope of inquiry under Sections 145 and 146 CrPC is limited to temporary preventive measures and does not extend to adjudication of civil rights. (Downloaded on 23/07/2025 at 09:21:23 PM) [2025:RJ-JD:30976] (4 of 10) [CRLR-1108/2009]
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:
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.(Downloaded on 23/07/2025 at 09:21:23 PM)
[2025:RJ-JD:30976] (5 of 10) [CRLR-1108/2009] (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 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 (Downloaded on 23/07/2025 at 09:21:23 PM) [2025:RJ-JD:30976] (6 of 10) [CRLR-1108/2009] 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 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 (Downloaded on 23/07/2025 at 09:21:23 PM) [2025:RJ-JD:30976] (7 of 10) [CRLR-1108/2009] 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 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."(Downloaded on 23/07/2025 at 09:21:23 PM)
[2025:RJ-JD:30976] (8 of 10) [CRLR-1108/2009]
6. In the case of Ram Sumer Puri Mahant Vs. 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 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.
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 related to the title and possession of the property is already pending before a competent Court then a parallel proceedings under Section 145 Cr.P.C. in a criminal Court would amount to needless duplication of efforts which ultimately will lead to wastage of time and resources. The order of the civil Court are binding upon the criminal Courts and (Downloaded on 23/07/2025 at 09:21:23 PM) [2025:RJ-JD:30976] (9 of 10) [CRLR-1108/2009] therefore in the presence of a pending civil suit, the continuation of proceedings under Section 145 Cr.P.C. serves no useful purpose and also lacks the legal foundation. Therefore, this Court finds it appropriate to quash the order passed by the SDM. However, in the event of any apprehension of breach of public peace between the parties, appropriate action may be taken under Sections 126, 135 r/w 170 of BNSS (corresponding to Sections 107 and 116, r/w Section 151 of the Cr.P.C respectively).
9. The proceedings initiated under Sections 145 and 146 of the CrPC are found to be an abuse of the process of law. By exercising the extraordinary jurisdiction of this Court, the proceedings initiated under Sections 145 and 146 CrPC in Case No. 2/2007 are hereby quashed and set aside. It is reiterated that the criminal court does not have the authority to hand over possession of immovable property, and such matters must be exclusively decided by the civil forum.
10. In view of the above discussion, the order dated 24.8.2009 passed by the learned Sub-Division Magistrate, Sanchore is set aside and order dated 3.10.2009 passed by Additional Session Judge, Bhinmal is found to be legally correct and deserves to be upheld to the extent it identifies the overreach by the subordinate courts; however, the pendency of proceedings under Sections 145 and 146 CrPC cannot be justified, as the matter squarely falls within the jurisdiction of the civil court where proceedings are already ongoing.
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[2025:RJ-JD:30976] (10 of 10) [CRLR-1108/2009]
11. The competent court, be it civil or revenue shall proceed with the matter and is at liberty to pass appropriate orders pertaining to possession, khatedari, or ownership of the disputed property. Any such adjudication shall be binding upon the criminal courts.
12. The Superintendent of Police concerned shall ensure that peace and public order are maintained, especially in the event of any apprehension of breach of peace between the parties. However, nothing shall preclude the authorities from initiating appropriate proceedings for prevention of breach of peace as contemplated under Sections 126 and 135 r/w Section 170 of the BNSS.
13. Accordingly, the petition is hereby dismissed.
14. Stay petition and stay applications, if any, stands disposed of.
(FARJAND ALI),J 3-Mamta/-
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