Executive Magistrate must ascertain actual possession and genuine threat to peace before initiating proceedings under Sections 145 and 146 Cr.P.C.

ORDER :

Farjand Ali, J.

By way of filing the instant Criminal Misc. Petitions, challenge has been made to the order dated 26.05.2023 whereby the learned Sub-Divisional Magistrate, Hanumangarh, in Cases No.01/2023 & 02/2023 initiated an inquiry under Section 145 of the Cr.P.C. and passed an order under Section 146(1) of the Cr.P.C. thereby appointed a receiver regarding attachment of property in question as well as against the orders dated 26.06.2023 passed by the learned Additional Sessions No.2, Hanumangarh in Criminal Revision Petitions No.41/2023 & 42/2023 whereby the revision petitions filed by the petitioners have been rejected.

2. Bereft of elaborate details, the facts necessary for disposal of the appeals would be that the petitioners are the Khatedars-tenants of the land in question. It is revealing that a certain part of total land was purchased by the respondents-Shewta Goyal and Leeja Goyal from some of the Khatedars vide sale deeds dated 30.01.2019. It is further revealing that the land in question had not been divided between the parties. It is further revealing that the part of the land which was sold to the respondents Leeja Goyal and Shewta Goyal was under hypothecation with the Bank and the installments were due. It is further revealing that the buyer-respondents herein wanted to take possession over the land in question but since the loanee had not deposited the entire due amount against the bank loan, therefore, FIRs in this regard got lodged. It would be pertinent to note here that before initiating the proceeding under Section 145 Cr.P.C. or moving an application under Section 146(1) of the Cr.P.C., criminal cases suggesting eminent danger of breach of peace or like circumstance to presume instant threat to public peace and tranquility had not been lodged. 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 eminent 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 v. State of Rajasthan 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 n