Document Fragment View
Fragment Information
Showing contexts for: crpc 146 in Urn: Crlr / 2524U / 2008Harjee vs State And Anr on 18 May, 2026Matching Fragments
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) [2026:RJ-JD:23467] (3 of 10) [CRLR-1161/2008] directed handing over possession to respondent No.2, hence the present petition.
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) [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.
(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) [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) [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."