The court reaffirmed that Section 145 of the Code permits a Magistrate to determine possession even amidst ongoing civil litigation, emphasizing the need for full disclosure of relevant facts by the parties.

JUDGEMENT

By way of these petitions under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 , the petitioners have challenged two almost identical orders / proceedings by way of two different petitions. Since barring the number of proceedings, survey numbers of land and sale deeds executed in respect of two different portions of land, all the facts are almost identical, both the matters are heard together and are now being decided together. For the purpose of deciding the matters, facts of Special Criminal Application No.8394 of 2018 are considered. On 3.8.2022, the following order was passed:

“Heard Mr.Viral Shah learned advocate for the petitioners in both the petitions, learned senior advocate Mr.R.R.Marshall with learned advocate Mr.Daifraz Havewala for Respondent No.2 in Special Criminal Application No.8394 of 2018 and learned advocate Mr.Aspi Kapadia for Respondent No.2 in Special Criminal Application No.8395 of 2018 and learned Additional Public Prosecutor Ms.Maithili Mehta for Respondent No.1 – State Authorities.

With the consent of the parties both the matters were taken up for final hearing.

Arguments concluded. Reserved for Judgment / Order.

Learned advocates for the respective parties are in agreement to the fact that though the record is bulky and matter was argued by pointing out to the revenue litigations as well as civil matters pending before this Court, this Court may consider only the validity of the impugned orders and, therefore, this Court shall confine itself only to the impugned orders.”

In view of the above order, Rule.

Ms.Maithili Mehta, learned Additional Public Prosecutor, waives service of rule for State respondent in both the petitions. Learned advocate Mr.Daifraz Havewalla waives service of rule on behalf of respondent No.2 in Special Criminal Application No.8394 of 2018 and learned advocate Mr.Aspi Kapadia waives service of rule on behalf of respondent No.2 in Special Criminal Application No.8395 of 2018. In Special Criminal Application No.8394 of 2018, the petitioners have prayed to quash and set aside the judgment and order dated 30.8.2018 passed in Criminal Revision Application No.235 of 2011 by the learned 13th Additional Sessions Judge, Surat and order dated 24.6.2011 passed in Court Case No.16 of 2011 under Section 145 of the Code of Criminal Procedure, 1973 by learned In-charge Additional Executive Magistrate, Surat City and further prayed to dismiss the proceedings initiated by the respondent No.1 being Court Case No.16 of 2011 as being not maintainable in the eye of law.

Heard Mr.Viral Shah, learned advocate for the petitioners, Mr.R.R.Marshall, learned Senior Advocate with Mr.Daifraz Havewalla, learned advocate for respondent No.2 in Special Criminal Application No.8394 of 2018 and Mr.Aspi Kapadia, learned advocate for respondent No.2 in Special Criminal Application No.8395 of 2018 and Ms.Maithili Mehta, learned Additional Public Prosecutor for State respondent, in both the petitions.

Brief facts giving rise to the present petition are stated as under:

6.1 One Khushalbhai Nathabhai, who happens to be father of the petitioner No.1 and Rameshbhai Khushalbhai Patel, respondent No.2, who expired on 24.10.2008, had purchased agricultural land bearing survey Nos.53 and 54 situated in Village Gaviyar, Taluka and District Surat (hereinafter referred to as, `land in question’) on 23.4.1966 and revenue entry to that effect was mutated in the revenue record being Mutation Entry No.487 on 23.4.1966. After Khushalbhai Nathabhai Patel, petitioner No.1 and his brother Rameshbhai Khushalbhai Patel became owners of the land in question. Respon