HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous (Petition) No. 3364/2026 Manoharlal S/o Bajrang Ram, Aged About 61 Years, Resident Of Dhaka Ki Dhani, Hansa Desh, District Phalodi ----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Khiyaram S/o Simratharam, Resident Of Shaheed Gopal Nagar, Sadri, Tehsil Lohawat, District Phalodi

3. The SHO, Police Station Lohawat, District Phalodi.

----Respondents For Petitioner(s) : Mr. Nishant Bora.

Mr. S.S. Choudhary.

For Respondent(s) : Mr. Pawan Bhati, PP Mr. R.J. Punia - R/2 HON'BLE MR. JUSTICE SUNIL BENIWAL

Order

Conclusion of Arguments &

Reserved on : 01/05/2026 Pronounced on : 13/05/2026

1. The present criminal miscellaneous petition has been filed by the petitioner, being aggrieved by the order dated 06.04.2026 (Annexure-3) passed by the Deputy District Magistrate, Lohawat, District Phalodi, whereby the disputed plots have been attached and possession thereof has been handed over to the Receiver.

2. At the outset, learned counsel appearing for respondent No.2 raised a preliminary objection with regard to the maintainability of the present miscellaneous petition. He submitted that, against the impugned order, a statutory remedy of filing a revision petition under Section 438 of the BNSS-2023 (corresponding to old Section 397 Cr.P.C.) is available and, therefore, the present miscellaneous petition is liable to be dismissed at the threshold.

3. Considering the preliminary objection raised by respondent No.2, this Court heard learned counsel for the parties on the question of maintainability of the present miscellaneous petition.

4. Learned counsel appearing for the petitioner fairly submitted that though a revision petition is maintainable against the impugned order, the facts and circumstances of the present case clearly indicate that there was gross abuse of power by the Deputy District Magistrate. Therefore, the petitioner could directly invoke the jurisdiction of this Court under Section 528 of the BNSS-2023 (corresponding to old Section 482 Cr.P.C.) and in the circumstances of the case, the present miscellaneous petition is maintainable despite availability of the statutory remedy of filing a revision petition.

4.1 While elaborating his submissions, learned counsel contended that the Deputy District Magistrate grossly abused his powers and that such powers were exercised only to oust the petitioner from his lawful possession. He further argued that a civil suit is pending between the parties, wherein a specific prayer has been made that the petitioner may not be dispossessed.

4.2 He also submitted that in the present case, the procedure mandated under Sections 164 and 165 of the BNSS - 2023 (corresponding to old Sections 145 and 146 Cr.P.C.) has not been complied with. As a matter of fact, without adhering to the requirements of Section 164 of the BNSS-2023, the Deputy District Magistrate proceeded to exercise powers under Section

165 of the BNSS-2023 which is in gross violation of the requirements of law.

4.3 He also submitted that the order impugned is in the nature of interlocutory order and therefore, the availability of remedy of revision petition per se does not take away the inherent powers of this Court under Section 528 of the BNSS - 2023.

4.4 In support of his submissions, learned counsel for the petitioner placed reliance on the judgment passed by the Apex Court in the case of Prabhu Chawla Vs. State of Rajasthan & Ors. : (2016) 16 SCC 30 and judgment passed by this Court in the case of Pratap Singh Vs. State of Rajasthan & Ors. : S.B.

Cr. Misc. Petition No.172/2004, decided on 14.05.2004.

5. Per contra, learned counsel appearing for respondent No.2 submitted that, once learned counsel for the petitioner himself admitted the availability of the statutory remedy of filing a revision petition against the impugned order, the present miscellaneous petition is liable to be dismissed on the ground of availability of an alternative remedy.

5.1 Even otherwise,