The main legal point established in the judgment is the interpretation and application of Section 145 of the Criminal Procedure Code in determining possession in a land dispute case.

H.R. Panwar, J.-This Criminal Miscellaneous Petition under Section 482 CrPC is directed against the order dated 19.03.2004 passed by Additional Sessions Judge, Anoopgarh ( for short the Revisional Court hereinafter) in Criminal Revision No. 24/2004 "Kherdeen vs. State of Rajasthan and Ors., whereby the Revisional Court set aside the order dated 28.02.2004 passed by Sub Divisional Magistrate, Gharsana (for short the Executive Magistrate hereinafter) in case No. 20/2002 whereby the Executive Magistrate held that the party No.1 petitioner Kherdeen unauthorisedly and foricibly took the possession of the land bearing No. 43/17 mesuing 25 bighas in Chak No. 18 MD and directed that the petitioner be dispossessed from the disputed land and possession of the disputed land be given to respondent No. 2 Mohd Ali and respondent No. 3 Smt. Sammi. Aggrieved by the order of the Executive Magistrate, the petitioner filed a revision petition before the Revisional Court. The Revisional Court allowed the revision petition, set aside the order of Executive Magistrate dated 28.02.2004 and remanded the matter to the Executive Magistrate to decide afresh after affording the opportunity of hearing to the parties keeping in view proviso to Sub-section (4) of Section 145 of the Code of Criminal Procedure (for short the Code hereinafter). Aggrieved by the order of the Revisional Court, after having availed one revision, the petitioner filed the instant criminal miscellaneous petition.

2. I have heard learned Counsel for the parties. Perused the order impugned and the relevant materials.

3. It is contended by the learned Counsel for the petitioner that with regard to the land in dispute, both the parties have been litigating in civil and revenue Courts and therefore, instead of proceeding under Sections 145 and 146 CrPC, the Executive Magistrate could have proceeded under Section 107/116 CrPC. He has relied on a decision of this Court in Sua Lal vs. Anandi Devi , reported in 1998

(1) RCrD 222.

4. Learned Counsel appearing for the contesting respondents submits that though the parties are litigating before the civil Court as well as before the revenue Court and the contesting respondents had been in possession of disputed land for a long period, but before initiating proceedings under Section 145 CrPC, within two months, the petitioner dispossessed the respondents No. 2 and 3 and forcibly took the possession and therefore, there being an imminent danger of breach of peace relating to possession of the land in dispute as also the apprehension of breach of peace existed, therefore, the SHO, Police Station, Gharsana filed a complaint before the Executive Magistrate under Sections 145 and 146 CrPC. Since, the apprehension of breach of peace existed on the date of filing of complaint, therefore, the proceedings under Sections 145 and 146 CrPC are maintainable. Learned Counsel for the respondents has relied on a decision of Honble Supreme Court in Prakash Chand Sachdeva vs. State,reported in 1994 (1) SCC 471.

5. The facts and circumstances giving rise to the instant petition are that originally land in dispute was owned and possessed by Ameerbux, father of the petitioner and respondent No. 3 Musammat Sammi, unmarried daughter of Ameerbux. During the life time of Ameerbux, he executed a Will and by this Will, the land measuring 12.10 bigha came in the share of his daughters Sharifa, respondent No. 3 Sammi, Khatun andMariyam. Respondent No. 2 Mohd Ali is husband of Mariyam. A criminal case was lodged by the petitioner against the afore-noticed persons in whose favour Will is alleged to have been executed by Ameerbux. The petitioner also filed a revenue suit before Sub-Divisional Magistrate, Raisinghnagar being Suit No. 27/90 with regard to the land in question for cancellation of the Will, which came to be dismissed on 212.1990. The petitioner again filed a civil suit being Suit No. 116/90 for Cancellation of the Will dated 04.04.1987 which also came to b