IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE th ON THE 18 OF MARCH, 2024 MISC. CRIMINAL CASE No. 8868 of 2013 BETWEEN:-

1. RITESH MEENA S/O SHRI SHYAMLAL MEENA, AGED ABOUT 27 YEARS, OCCUPATION: BUSINESS, R/O VILLAGE RUTIYAI, DISTT. GUNA (MADHYA PRADESH)

2. GOVIND MEENA S/O SHRI SHYAMLAL MEENA, AGED ABOUT 30 YEARS, OCCUPATION BUSINESS, R/O VILL. RUTIYAI, DISTT. GUNA (MADHYA PRADESH)

.....APPLICANTS (BY SHRI AMIT LAHOTI - ADVOCATE )

AND

1. KRISHNA MURARI MEENA S/O SHRI GANDALAL MEENA, R/O VILL.GONDALPUR TEHSIL RAGHOGARH, DISTT. GUNA (MADHYA PRADESH)

2. STATE OF M.P. THR. COLLECTOR AND DISTT.

MAGISTRATE, DISTT., GUNA (MADHYA PRADESH)

.....RESPONDENTS ( SHRI LOKENDRA SHRIVASTAVA -GOVT. ADVOCATE FOR RESPONDENT/STATE )

This application coming on for direction this day, the court passed the following:

ORDER

The present petition under section 482 of Cr.P.C is directed against the order dated 5.10.2013 passed by the learned Third Additional Sessions Judge, Guna in Criminal Revision No 131/2013 whereby an order dated 2.8.2013 passed by the SDO, Raghogarh, Guna wherein the dwelling house of the petitioner was directed to be attached and possession thereof be handed over to a third party or any agency, has been affirmed.

While assailing both the orders i.e. order dated 2.8.2013 passed by the SDO and the order dated 5.10.2013 passed by the Third ASJ, Guna in Criminal Revision No.131/2013, it was contended that the powers under section 146 of Cr.P.C can be exercised by a Magistrate in pusuance to any order passed u/S.145 of Cr.P.C wherein procedure has been prescribed with regard to any dispute concerning land or water which is likely to cause breach of peace. It was further submitted that the property in dispute is neither land or water but is a dwelling house which under the provisions of section 145 of Cr.P.C. cannot be a subject matter of dispute between parties and, if at all, it is assured that there is any dispute it would be of civil nature, for which appropriate remedy is to approach the Civil Court. It was further submitted that a civil suit had already been preferred by the petitioners in the year 2012 itself. Therefore, ones the parties have exhausted their appropriate remedies the very order of attachment passed by SDO appears to be per se illegal. On the aforesaid premise, it was contended that the present Mcrc deserves to be allowed and the impugned order passed in Criminal Revision No. 131/2013 dated 5.10.2013 as well as the order passed by the SDO dated 2.8.2013 in Case No.1/ 145/ 12/ 3140 deserves to be set aside.

None for the respondent No.1 even after service of notice.

Learned Counsel for the State submits that the dispute is between petitioner and respondent No.1 and since it is a formal party, it has nothing to argue.

After hearing counsel for the petitioner and going through the provisions as contained under section 145 and 146 of the Cr. P C., this Court finds sum and substance in the arguments advanced by the learned Counsel for the petitioner that nowhere under the sections power is given to the Magistrate under section 146 of Cr.P.C.for attaching a dwelling house. Though, this argument has no force as under section 145 (2) of Cr.P.C., the expression 'Land and water', as mentioned in sub-section (i) includes buildings, markets, fisheries, crop or other produce of land and even the rents or profits of any such property, but as per section 145 (1), it is only when he decides that none of the parties was then in possession as is referred in Section 145 or if he is unable to satisfy himself, as to which of them was then in such possession of the subject of dispute, that he may attach the subject of dispute until a competent court had determined the rights of the parties thereto with regard to the person entitled to the possession thereof.

However, this Court finds that there is no discussion of the factum of possession by the Magistrate while passing the order dated 02.08.2013 as pr