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FARJAND ALI
Poonam Chand – Appellant
Versus
State of Rajasthan – Respondent
ORDER :
Farjand Ali, J.
The instant misc. petition has been preferred against the order dated 25.07.2023 passed by learned Additional Sessions Judge, Nokha, District Bikaner in Criminal Revision No.49669/2014 whereby the learned Judge has set aside the order dated 08.08.2014 passed by learned Sub-Divisional Officer, Nokha in Criminal Complaint No.3/2008 whereby the learned Executive Magistrate has directed to attach the property and appointed the Tehsildar as receiver of the property.
2. Heard learned counsel for the petitioner and learned Public Prosecutor as well as gone through the order passed by learned Executive Magistrate as well as passed by learned Court of Revision.
3. The ambit and scope of Sections 145 and 146 of the Cr.P.C. is limited to the question of possession, when it comes to the knowledge of an Executive Magistrate that there has been a strong apprehension of breach of peace and tranquility with regard to possession of an immovable property or it is not ascertainable as to which party is in possession of the property or it is shown that prior to two months of the dispute, the possession has been taken over forcibly by one party from the other; then in such circumsta
The Court emphasized that vague assertions of breach of peace are insufficient for an attachment order under Sections 145 and 146 of the Cr.P.C.
Executive Magistrate must ascertain actual possession and genuine threat to peace before initiating proceedings under Sections 145 and 146 Cr.P.C.
An order of attachment under Section 146(1) Cr.PC requires proof of likelihood of breach of peace and determination of possession, which was not established in this case.
The Executive Magistrate cannot adjudicate ownership or title; only the question of possession is within their jurisdiction under Sections 145 and 146 of the Cr.P.C.
The Executive Magistrate must determine actual possession and cannot adjudicate rights; attachment of property requires emergent circumstances and imminent danger of breach of peace.
Criminal courts should not intervene in property disputes already subject to civil litigation unless there is an imminent threat to public peace.
The judgment establishes the importance of adhering to the procedural requirements of Sections 145(1) and 146(1) of the Cr.P.C., emphasizing the need for separate orders and the Executive Magistrate'....
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.
The power to attach the property and appointing a Receiver has to be exercised in a case of emergency, where there is real threat perception to the property and life of people and not in a casual man....
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