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1996 Supreme(Raj) 653
Rajasthan High Court
Honble R.R. YADAV, J.
Smt. Keshar - Appellant
Versus
State of Rajasthan and Another - Respondents
S.B. Criminal Misc. Petition No. 710 of 1995
Decided On : November 04, 1996
A.K. Singh, for Petitioner S.K. Vyas, Public Prosecutor S.K. Sen, for Respondent No. 2
Headnote:Criminal Procedure Code, 1973 – Section 145(10) and 146 – Agreement to sale was entered upon with out getting it registered – A decree of eviction was obtained by deceit – Petition was moved to set aside the ex-parte decree – During these civil proceedings the Criminal proceedings appointed a receiver – This is a wrong step – The civil court should have been moved for this – Held – Possession be restored – If there is a fresh apprehension of breach of peace the parties should move under section 107 reads with Sec. 146. (Paras 8 and 14)
In the penultimate lines of this order it would be relevant to take notice of Sec. 145(10) Cr.P.C. according to which nothing under Sec. 145 Cr.P.C. shall be deemed to be in derogation of the powers of the magistrate to proceed under Sec. 107 Cr.P.C. It appears to me that the provisions of Sec. 107 and Sec. 145 Cr.P.C. are counter parts of the same policy to arrest apprehension of breach of peace. The phraseology used under Sec. 145(10) Cr.P.C. leads towards an irresistible conclusion that ordinarily when an Executive Magistrate receives information about threatened breach of peace between t he parties on account of dispute regarding land then he should proceed under Sec. 145 Cr.P.C. and it is left at his discretion to proceed or not to proceed under Sec. 107 Cr.P.C. simultaneously but whenever and wherever it is brought to his notice that a suit is pending before a competent court involving question of possession and the parties are either capable to approach such court to obtain interim injunction or to get a receiver appointed or actually one of the party had approached such court and had obtained either temporary injunction or got a receiver appointed for protection of the land in dispute during the pendency of such suit then in such a situation an Executive Magistrate has no option except to proceed under Sec. 107 Cr.P.C. to arrest the apprehension of breach of peace between the parties. In the latter facts and circumstances of the case it would be meaningless to initiate proceeding under Sec. 145(1) Cr.P.C. looking to multiplicity of proceedings, unnecessary express to the parties and wasting of public time. (Para 14)
(2). Brief facts leading upto this stage are that the respondent No.2 lodged a FIR before S.H.O., Naya Sahar on 10.7.95 making an allegation that she has made an agreement of sale of the house in question with possession with the petitioner on 3.10.90 and since then she was in possession but she has been forceably dispo- ssessed by the petitioner. She complained that on the basis of agreement to sell dated 3.10.90 she is entitled to continue in possession, therefore, possession may be taken from Smt. Keshar, present petitioner and be restored to her.
(3). The S.H.O., Naya Sahar after enquiry, sent a report to the learned Additional District Magistrate (City) Bikaner that there is serious apprehension of breach of peace between the parties, therefore, in order to arrest apprehension of breach of peace a receiver may be appointed. On the aforesaid report, the learned Additional District Magistrate (City), Bikaner vide his order dated 18.7.95 initiated proceedings under Sec. 145 Cr.P.C. and in consequence thereof appointed S.H.O., Naya Sahar as a receiver of the house in question in exercise of his power under Sec. 146 Cr.P.C.
(4). Aggrieved against the order dated 18.7.95, passed by learned Additional District Magistrate (City), Bikaner, the petitioner filed a revision before the learned Sessions Judge, Bikaner where it was brought to the notice of the learned Sessions Judge that by playing fraud respondent No. 2 Smt. Shanti Devi had obtained an ex-parte decree against her. When she came to know about fraudulent ex-parte decree she had moved an application under O.9, R. 13 C.P.C. for setting aside the ex-parte decree.
(5). Before entering into the merits of the case and adverting to the rival contentions raised at the Bar, it is to be noticed that it is admitted by the learned counsel for the parties that the agreement dated 3.10.90, on basis of which the respondent No.2 is claiming her right, title and interest including possession, is an unregistered document while Sec. 17 of the Indian Registration Act has been amended by Rajasthan Amendment Act No. 18 of 1989 which is made enforceable w.e.f. 18.9.89. It is also admitted by the learned counsel for the parties the against ex-parte decree obtained by the respondent No.2 a proceeding for setting aside ex-parte decree is pending before civil court under O.9 R. 13 C.P.C.
(6). With the aforesaid introspection, now the rival contentions raised at the Bar are to be examined.
(7). Bottom line argument of the learned counsel for the petitioner before me is that since civil proceedings are pending between the parties under O.9 R.13 C.P.C., therefore, even if there appears to be apprehension of breach of peace between the parties the proceedings ought to have been initiated under Sec. 107/116 Cr.P.C. Learned counsel for the petitioner in support of his aforesaid contention placed reliance on a decision rendered by me in the case of Chatra Ram & Ors. vs. State of Rajasthan and Ors. (1).
(8). There is substance in the aforesaid argument of the learned counsel for the petitioner. The aforesaid question came up for consideration before me in case of Chatra Ram (supra) where in para 15 it was held which reads thus :–
``It is true that to arrest apprehension of breach of peace and to maintain public tranquillity is within the exclusive domain of Executive Magistrate as well as the District administration, therefore, in such situation wherever it is brought to the notice of Executive Magistrate that a regular suit is pending before a competent court invol
