HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
FARJAND ALI
Shyam Singh, S/o Shri Prem Singh Rajput – Appellant
Versus
State Of Rajasthan Through Public Prosecutor – Respondent
Order :
(FARJAND ALI, J.)
1. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner against the order dated 27.10.2016 passed by the learned Additional Sessions Judge, Sojat, District Pali, Rajasthan whereby the revision petition preferred on behalf of the respondent has been allowed and the order passed by the learned executive Magistrate dated 26.05.2016 in Criminal Case No. 04/2016 passed under Section 145 and 146 of Cr.P.C. for attachment of disputed property and for appointment of receiver has been quashed and set aside.
2. The brief facts of the case are that the petitioner, representing the villagers of Guda-Kallan, filed a complaint with the SHO, Bagdi, Tehsil Sojat, alleging that a public well known as Ganwai Pichka (Bera), situated on Khasra Nos. 196, 197, and 198, was being illegally occupied by private respondents Panna Ram, Madan Lal, and Ratan Lal, who were unlawfully constructing on the public land. When villagers opposed the encroachment, the respondents allegedly resorted to threats and violence. Following the complaint, the SHO initiated proceedings under Sections 145 and 146(1) Cr.P.C. before the SDM, Sojat, who, by order dated 26.05
Criminal courts should not intervene in property disputes already subject to civil litigation unless there is an imminent threat to public peace.
Criminal courts should refrain from intervening in civil disputes unless there is an imminent danger of breach of peace, especially when civil proceedings are already pending.
Proceedings under Sections 145 and 146 Cr.P.C. require a serious question of possession and cannot continue if civil proceedings regarding the same property are pending.
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.
Executive Magistrate must ascertain actual possession and genuine threat to peace before initiating proceedings under Sections 145 and 146 Cr.P.C.
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.
Point of Law : Section 145 of Code concerned with restoration of possession and prevention of breach of peace and tranquillity.
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.
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.
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