HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 1245/2022

1.

Gopi S/o Bholu, Aged About 62 Years, R/o Dawaddumba

Tehsil Todaraisingh Distt. Tonk Raj.

2.

Ranglal S/o Bholu, Aged About 60 Years, R/o

Dawaddumba Tehsil Todaraisingh Distt. Tonk Raj.

3.

Bhanwar Lal S/o Bholu Ram, R/o Dawaddumba Tehsil

Todaraisingh Distt. Tonk Raj.

----Petitioners

Versus

1.

State Of Rajasthan, Through Pp

2.

Mulya S/o Chaturbhuj, Aged About 65 Years, R/o

Ramsinghpura Tehsil Todaraisingh Distt. Tonk Raj.

3.

Prahlad S/o Ramkaran, Aged About 45 Years, R/o

Bhagwanpura Tehsil Todaraisingh Distt. Tonk Raj.

4.

Kanha S/o Ladu, Aged About 45 Years, R/o Ramsinghpura

Tehsil And PS Todaraisingh Dist. Tonk Raj.

----Respondents

For Petitioner(s)

:

Mr. Atul Kumar Jain

For Respondent(s)

:

Mr. Imran Khan, PP

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

29/07/2022

Heard the parties.

A proceeding under Section 145 Cr.P.C bearing case

No.1/2021 was going on before the Sub Divisional Magistrate,

Todaraisingh between the petitioners and the private respondent.

It is mentioned in the impugned order that for Plot No.239 area

0.94 hectare, there is dispute between the parties. A civil

proceeding is pending for the same land before the Revenue

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[CRLMP-1245/2022]

Court. However, there was apprehension of breach of peace for

possession over the said land.

In the circumstance by the impugned order dated

23.12.2021, learned Sub Divisional Magistrate attached the

property in exercise of Power under Section 146 Cr.P.C. and

appointed a receiver.

The said order was challenged before the learned Sessions

Judge in Criminal Revision Petition No.7/2022 and by the

impugned order dated 17.01.2022, learned Sessions Judge,

Malpura, District Tonk stayed the order of attachment dated

23.12.2021 and directed the Sub Divisional Magistrate to decide

the proceeding under Section 145 Cr.P.C. on merit.

Learned counsel for petitioners submits that the Revisional

Court has not assigned any reason for the impugned order. The

impugned order reveals that the Revisional Court has noted that

affidavit of the SHO was not there on the record to substantiate

that there was apprehension of breach of peace.

Besides the situation of emergency, there are two more

requirements for exercise of power under Section 146 Cr.P.C:- The

Magistrate decides that none of the parties was then in such

possession as referred to in Section 145 Cr.P.C., or if he is unable

to satisfy himself as to which of them was then in such possession

of the subject of dispute.

Learned Magistrate has not mentioned in the order, whereby,

attachment was affected that he was not satisfied as to which of

the party was in possession of the land on the date of initiation of

proceeding under Section 145 Cr.P.C. In absence of such finding,

the attachment would amount to dis-possession of one of the

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[CRLMP-1245/2022]

parties, who was in actual possession of the land under

proceeding on the date of proceeding.

If there was only apprehension of breach of peace, remedy

under Section 107 Cr.P.C. was there to prevent it and not to take

over possession from the rightful person. Therefore, I do not find

any infirmity in the order of the Revisional Court.

Learned Divisional Magistrate is directed to decide the

petition expeditiously under Section 145 Cr.P.C., preferably, within

six months.

Accordingly, the petition stands dismissed.

Pending application, if any, also stands dismissed.

(BIRENDRA KUMAR),J

Sunita/24