ORDER

This application under section 482 of CrPC has been filed seeking the following relief:-

It is, therefore, most humbly prayed that this Hon'ble court may kindly be quash the order dated

12.10.2023, passed in CRR 390/23 (Shri Dharmesh Bhatt) & order dated 30.06.2023 passed by the S.D.M. and pass such other order as deem fit under the fact and circumstances of the case.

2 . In view of the controversy involved in the present case, it is not necessary to refer to the facts and evidence in detail.

3. It is suffice to mention here that the Police filed an application under section 145 of CrPC on the allegation that the applicant is the owner of Plot No.19-A; whereas the respondent no.2 is the owner of Plot No.20-A and the applicant has encroached upon a part of Plot No.20-A.

4 . On two occasions the matter was remanded back because the revisional court found certain inherent lapses in the proceedings conducted by the SDM. On the third occasion the SDM after reproducing the provisions of section 145 of CrPC held that it is necessary to see that who was forcibly and wrongfully dispossessed within 2 months next before the date on which the report of the police officer or information was received by the Magistrate, however, surprisingly did not touch this aspect and simply gave a finding that the applicant has encroached upon some part of Plot No.20-A. Even the revisional court did not touch this aspect and it appears that the proceeding under section 145 of CrPC has been decided like that of a civil suit. The mandatory requirement to initiate proceedings under section 145 of CrPC is that the SDM must give a finding that who was illegally or forcibly dispossessed within 2 months next before the date on which the report of a police officer or information was received by the Magistrate. In absence of such a finding, no final order under section 145(4) of CrPC can be passed directing one of the party to revert back the possession.

5. Since the record of the court below is not available, therefore, it is difficult for this court to give a finding as to whether the respondent no.2 had successfully pleaded and proved that he was forcefully dispossessed within 2 months next from the date on which the information was given by the police or not?

6. Neither the SDM Govindpura/Nishatpura, Division Bhopal has given a finding that the respondent no.2 was dispossessed within a period of 2 months next from the date of receipt of information from the police nor the revisional court has given such a finding.

7. Initially this Court was thinking of remanding the matter back, but in view of the fact that inspite of two remands, the SDM has still committed the basic illegality and has assumed the power of the civil court to decide the proceedings under section 145 of CrPC as if they are proceedings under section 9 of CPC, accordingly, this Court does not find it proper to remand this matter back to SDM Govindpura/Nishatpura, Division Bhopal.

8. It is well settled principle of law that the civil proceedings should not be converted into a criminal proceeding and it appears that the respondent has tried to take possession of the property by taking undue advantage of proceedings under section 145 of CrPC instead of filing civil suit under section 9 of CPC.

9 . Accordingly, the orders dated 30.6.2023 passed by SDM, Sub Division, Govindpura/Nishantpura, Division Bhopal and 12.10.2023 passed in Cr.R.No.390/2023 passed by Fourth Additional Sessions Judge, Bhopal are hereby set aside.

10. It is directed that if so desires then the respondent no.2 can approach the civil court for redressal of his grievances.

11. With aforesaid observations, the petition is allowed. (G.S. AHLUWALIA) JUDGE TG /-<br/>