The Executive Magistrate must determine actual possession and cannot adjudicate rights; attachment of property requires emergent circumstances and imminent danger of breach of peace.

ORDER :

1. The instant criminal revision petition has been preferred by the petitioner against the order dated 09.03.2017 passed by the learned Additional Sessions Judge No.3, Bikaner in Criminal Revision No. 77/2014 whereby the revision petition filed by respondent no.2 was allowed and judgment dated 31.10.2014 passed by learned Sub-Divisional Magistrate, Bikaner in Criminal Case No. 51/2003 was set aside whereby while disposing off the complaint under Section 145 Cr.P.C., the learned Executive Magistrate has declared the actual possession of the petitioner over the plots in dispute and while recalling the order to attachment, directed the SHO, Police Station Gangashahar, District Bikaner to hand over the possession of the plots in dispute to the petitioner No.1.

2. Briefly stating the facts of the case are that the petitioner, Bhanwarlal (Party No. 1), filed a complaint under Section 145 and 146 of the Cr.P.C. on 10.04.2003 before the Sub-Divisional Magistrate (S.D.M.), Bikaner, alleging that he was in peaceful possession of Plot Nos. 222 and 223 located in Sarva Sidhi Nagar Scheme No. 1, Gangashahar, which he had purchased through valid documents in 1985 and 2002 respectively. He claimed that Kishnaram (Party No. 2) was attempting to forcibly take possession of these plots, and had even issued threats on 09.04.2003, raising the likelihood of a breach of peace. Based on a police report confirming the dispute, the learned S.D.M. ordered attachment of the disputed plots under Section 146(1) Cr.P.C. on 28.04.2003 and appointed the S.H.O. as the receiver. Later, Kishnaram appeared and submitted an agreement dated 01.05.2004 showing his claim on the land. On the basis of this, the learned S.D.M. directed handing over possession of the land in dispute to Kishnaram vide order dated 15.04.2010. The petitioner, Bhanwarlal challenged this in revision, and the learned Additional Sessions Judge set asided the order on 25.06.2010, remanding the matter back for fresh proceedings under Section 145(4) Cr.P.C. After leading evidence, the learned S.D.M. on 31.10.2014, passed an order declaring the petitioner’s right to possession and directed that possession be restored to him. However, Kishnaram again made a challenge to this order, and the learned revisional court on 09.03.2017 allowed his petition by setting aside the S.D.M.’s order. The petitioner being aggrieved by this, has now filed the present revision petition under Section 397 Cr.P.C. before this Court.

3. Heard learned counsels appearing on behalf of the parties and learned public prosecutor for the State as well as perused the orders passed by the courts below and material available on record.

4. Upon perusal of the material available on record, it is evident that possession was taken from the petitioner. The documents clearly reflect that the petitioner submitted an application under Sections 145 and 146 of the Cr.P.C., on which several orders were passed. Ultimately, the order passed by the Additional Sessions Judge No. 3, Bikaner, appears to be correct, wherein the order dated 31.10.2014 passed by the Sub-Divisional Magistrate (SDM) was dismissed. This Court has examined the case thoroughly and gone through the orders placed on record and finds that no civil or revenue proceedings concerning or questioning right, title, interest and possession of the said property are pending before any competent court. The order passed by the learned Additional Sessions Judge also does not mention any such pending litigation. This raises a pertinent question: Has the property of an individual effectively been handed over to the police permanently or indefinitely? At most, an order could have been passed acknowledging a threat to public peace and directing that possession be maintained by the police till such time as appropriate civil or revenue proceedings are initiated or adjudicated or right to possession is finally decided. However, in the present case, the order is silent on such a condition,