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.

Order :

FARJAND ALI, J.

1. The instant criminal misc. petition under Section 482 Cr.P.C. has been preferred by the petitioner challenging the order dated 25.06.2012 passed by Sub-Divisional Magistrate, Sriganganagar in Case No. 07/2011 whereby directions for giving possession of the land in question to the petitioners has been refused.

2. Briefly stating the facts of the case are that the petitioners have filed the present petition challenging the order dated 25.06.2012 passed by the SDM, Sri Ganganagar, who refused to direct the return of possession of land measuring 5.13 bighas to them. The land in question was originally gifted by Sh. Kartar Singh to Petitioner No. 1 through a registered gift deed dated 12.08.2008, and the petitioner had been in possession of the same for the past 15-20 years. However, due to a dispute raised by other legal heirs, proceedings under Section 145 Cr.P.C. were initiated, and the SDM passed an order on 11.07.2011 for attachment of the total 24 bighas of land, appointing the Naib Tehsildar as receiver and possession was taken from both parties on 20.08.2011. The SDM’s attachment order was subsequently quashed by the learned Sessions Judge on 07.09.2011, with directions for restoration of possession to the rightful parties. Despite repeated applications, court orders, and official communications, respondent No. 13 (Naib Tehsildar) failed to return possession to the petitioners and even allegedly demanded money, prompting a complaint to the Anti-Corruption Bureau. The petitioners assert that this conduct amounts to abuse of process by public authorities, causing them irreparable harm. They seek quashing of the impugned order dated 25.06.2012 and appropriate directions for the return of possession of the land in question.

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

4. The issue involved in this matter has already been dealt by this Court in Mohammad Ramjan and Ors. v. State of Rajasthan and Ors. [S.B. Criminal Misc. Petition No. 4499/2023]. For convenience, it is appropriate to reproduce the order dated 13.03.2024 passed by this Court. For ready reference, the relevant paragraphs of the order are reproduced herein below:-

“2. ………….. 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 Vs. 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 possessio