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RAJASTHAN HIGH COURT
Farjand Ali, J.
Ashoknath Chela Kevalnath - Appellant
Versus
State of Rajasthan, Through PP & Ors. - Respondents
S.B. Criminal Misc(Pet.) No. 1949 of 2022
Decided On : 16-11-2022
Property - Dispute - Cr.P.C. Sections 145, 146 - The court emphasized the necessity of establishing imminent danger of breach of peace before ordering property attachment and receiver appointment, highlighting the distinction between right to possession and actual possession.
Fact of the Case:
The petitioner sought to quash orders for property attachment and receiver appointment due to a dispute over the Navleshwar Monastery's property, with claims from two parties regarding their right to be the 'Gadipati'.
Finding of the Court:
The court found that the Executive Magistrate failed to establish imminent danger of breach of peace and that the petitioner had been in peaceful possession for over twenty years, thus quashing the lower court orders.
Issues: Whether the Executive Magistrate acted within the legal framework of Sections 145 and 146 of the Cr.P.C. in ordering property attachment and receiver appointment without establishing imminent danger of breach of peace.
Ratio Decidendi: The court held that the Executive Magistrate must ascertain actual possession and the existence of emergent circumstances before ordering property attachment under Sections 145 and 146 of the Cr.P.C.
Result: The orders of attachment and receiver appointment were quashed and set aside.
ORDER
1. The instant criminal misc. petition has been preferred by the petitioner Ashoknath Chela Kevalnath for quashing of the order dated 04.04.2022 passed by the Additional Session Judge No.7, Jodhpur Metro in Criminal Revision Petition No. 28/2022 whereby he affirmed the order dated 23.3.2022 passed by the Additional District Magistrate No.1, Jodhpur in Criminal Misc. Case No. 1/2021 who passed an order to attach the property in question and appointed the Inspector, Devesthan Department, Jodhpur as a receiver with a specific direction to take possession over the property in question.
2. Bereft of elaborate details succinctly stated the facts of the case are that the SHO Police Station, Udaimandir, Jodhpur Commissionerate submitted an application under Section 145 of the Cr.P.C. before the ADM City, Jodhpur averring that there was a dispute between party no.1 and party no.2 regarding the property of "Nath Community" referred as Navleshwar Monastery. The land of the Monastery was gifted by His Highness of Jodhpur to Shri Bananath Ji who constructed a small Monastery on the land and became the first "Gadipati". After Shri Bananath Ji his disciple Shri Navalnath became "Gadipati". Exruler of the Jodhpur issued a patta in the year 1927 for the property of Monastery. The chronology of the succession among disciple has been mentioned in the complaint. It is stated that after having discuss with the monk and saints, in the year 2009 while being the head of Monastery Shri Kevalnath Ji decided to elect Shri Premnath Ji as the next "Gadipati" from Ramdeora Sheva Trust. During his tenure in the year 2015, Shri Ashoknath Ji was proposed to be appointed as the next "Gadipati" for the Monastery. Shri Kevalnath also wrote a letter to Nath Samaj Panchayat Authority to appoint the next "Gadipati". Shri Premnath Ji died on 15.12.2019 as "Gadipati" of the Monastery therefore on 31.12.2019, Shri Ashoknath Ji was appointed as the next "Gadipati" of the Monastery. In the meantime, after the demise of Shri Premnath Ji, the head of the Ramdeora Sheva Trust, Shri Jagannath wrote a letter of authority in favour of Yogi Vilasnath disciple of Shivsatyanath to be appointed as the "Gadipati" of the Navleshwar Monastery but the Nath Samaj Panchayat had already appointed Shri Ashoknath as "Gadipati" thus, it led a rift between two communities as a result of which cross cases were registered. Both the parties claimed and to have right and alleged documents of the other party as fraudulent in nature. In the meantime, Shri Vilasnath Ji raised the matter that he will take the seat of "Gadipati" on 30.1.2021 and it was alleged that he tried to take the seat by using force against Shri Ashoknath Ji. Thus, it is averred in the complaint that the dispute between two disciples regarding their authority to be appointed as "Gadipati" of the Navleshwar Monastery which may lead to create ruckus in the society and may hamper peace and tranquility. By filing the complaint, the SHO apprehended that there is likelihood of breach of peace and happening of any untoward incident.
3. Upon receipt of the complaint, the Executive Magistrate ordered to register a case under Section 145 of the Cr.P.C. and directed to issue notices to party Nos.1 and 2 vide order dated 18.1.2021. During the course of the inquiry, party No.1 Sh. Ashoknath etc. submitted a detailed reply claiming over the questioned property. However, the party No.2 Shri Yogi Vilasnath etc. who is respondent in this petition has not chosen to file any reply but instead thereof oral submissions were made on his behalf.
4. After hearing counsel for the parties, the learned Executive Magistrate observed that tension among parties has spreaded there in regard to right of possession and, therefore, reasonable apprehension of breach of peace has been expressed, thus noticing the above fact and in order to prevent the breach of peace, the learned Magistrate allowed the complaint and directed to attach the property in question
Executive Magistrates cannot initiate proceedings under Section 145 Cr.PC if a civil suit related to the same property is ongoing, as it encroaches on civil jurisdiction without established emergency....
The Executive Magistrate's findings on possession under Section 145 Cr.P.C. are binding unless proven perverse, and jurisdiction over title disputes lies with civil courts.
The main legal point established in the judgment is that criminal proceedings under Section 145 and Section 146(1) of the Code of Criminal Procedure, 1973 should only be initiated when there is a lik....
The court emphasized that attachment orders under emergency provisions must be backed by compelling evidence of imminent danger to public peace, otherwise it constitutes a misuse of legal process.
Criminal proceedings under Sections 145 and 146 Cr.P.C cannot overrule ongoing civil litigation regarding property ownership, necessitating the maintenance of status quo in possession.
Point of Law : Section 145 of Code concerned with restoration of possession and prevention of breach of peace and tranquillity.
Parallel proceedings under Section 145 Cr.P.C. are impermissible when a civil suit regarding the same property is pending, as the civil court's decisions on title and possession are binding.
(1) Apprehension of breach of peace – Sections 145 and 146 of Cr.P.C. together constitute a scheme for resolution of a situation where there is a likelihood of a breach of peace because of a dispute ....
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