IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT RAJNIKANT AGRAWAL VS. GOPALI DEVI MEENA & ORS. SB Criminal Revision Pet. No.106 OF 2009 under Section 397 read with Section 401 Cr.P.C. against the order dated January 21, 2009 passed by Addl. Sessions Judge Fast track No.1 Jaipur City Jaipur in Criminal Revision No. 19 of 2009 whereby he allowed the revision petition filed by the respondents l and 2 against the order dated December 12, 2008 of Addl. District Magistrate Jaipur City (South) Jaipur in Case No. 5 of 2008 under section 145 Cr.P.C. Date of Order : March 18 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr.S.S.Hasan, for the petitioner. Mr.R.K.Daga, for the respondent. Mr.Pitush Kumar, Public Prosecutor BY THE COURT : This revision petition has been filed by the petitioner Rajnikanth Agrawal, against the order dated January 21, 2009 passed by Addl. Sessions Judge Fast track No.1 Jaipur City Jaipur in Criminal Revision No. 19 of 2009 whereby he allowed the revision petition filed by the respondents l and 2 against the order dated December 12, 2008 of Addl. District Magistrate Jaipur City (South) Jaipur in Case No. 5 of 2008 under section 145 Cr.P.C. 2. Brief facts of the case are that on October 21, 2008, the petitioner lodged an FIR at Police Station Jawahar Circle Jaipur, which was registered as FIR No. 115 of 2008 against the non-petitioners l and 2. The SHO Police Station Jawahar Circle sought information from the Jaipur Development Authority regarding title of the plots in question for which FIR was filed. The Dy. Commissioner of Zone IV in the JDA vide his letter dated November 7, 2008 informed that the plots No.80, 81 and 82 are in the names of Shri Dharmendra Gupta, Vikas Khetan and Sanjay Agrawal. Brother of non-petitioner No.2, Badri Prasad, was an MLA and therefore under his influence the non-petitioners l and 2 tried to encroach upon the plots of the petitioner and they damaged the boundary wall of the plots. The non-petitioners l and 2 are running a School nearby the plots of the petitioner and they tried to assault the petitioner on November 12, 2008. The matter was reported to the SHO Police Station Jawahar Circle. Thereafter the SHO PS Jawahar Circle filed a complaint under section 145 Cr.P.C. On December 15, 2008 and reported the matter to the ADM II Jaipur City, Jaipur stating therein that party No.1 i.e. the petitioner lodged FIR No. 115 of 2008 under section 448 IPC on October 21, 2008 stating therein that they are the plot owners of Plots No. 80,81 and 82 . When the petitioner went to their plots, he came to know that Shri Badri Prasad Meena, non- petitioner No.2 and his wife Gopali Devi Meena non-petitioner No.1 have written the names of their School on the boundary wall of the plots of the petitioner. When the petitioner tried to stop them from writing the name of the school on the boundary wall, they threatened to murder the petitioner. It was reported that Shri Badri Prasad Meena and Smt. Gopali Devi Meena have damaged the boundary wall of these plots and hence, there is a strong apprehension of breach of peace, therefore proceedings under section 145 Cr.P.C. be initiated and a Receiver be appointed on the plots in question. Since there was a strong apprehension of breach of peace and on the basis of the complaint filed by the SHO, the ADM passed an order on December 16, 2008 under section 145 Cr.P.C. and the plots in question have been attached and the Tehsildar Sanganer was appointed as Receiver on the plots No. 80, 81, and 82. Since again there was a strong apprehension that the non-petitioners l and 2 will again encroach upon the plots, the petitioner prayed that fencing be done on the plots for the security of the plots. The SDM vide order dated December 31, 2008 allowed the petition filed by the petitioner and it was ordered that the Tehsildar Sanganer will do the fencing on the plots at the expenditure of the petitioner. Aggrieved against the order dated December 16, 2008, the non- petitioners l and 2 filed revision petition before the Sessions Judge Jaipur City Jaipur which was subsequently transferred to the court of Addl. Sessions Judge Fast Track No.1 Jaipur City, Jaipur. The Additional Sessions Judge vide order dated January 21, 2009 allowed the revision petition filed by the non-petitioners and quashed the order of the SDM dated December 16, 2008 appointing receiver. Aggrieved against the order of the Additional Sessions Judge,allowing the revision petition of the non-petitioner, the petitioner has filed the present revision petition. 3. Mr. S.S.Hasan, learned counsel for the petitioner submitted following submissions : (a) It is an admitted fact that the petitioner is the title holder of the plots in question. These plots were allotted by the Society to the petitioner in the year 1999. Subsequently 90 B proceedings were initiated in the year 2001 and in the JDA records, the petitioner is the titled holder of the plots in question. (b) There was a strong apprehension of breach of law and order. There was a dispute of possession, therefore, the ADM has initiated proceedings u/s 1 `45 Cr.PC. And the plots in question have been attached u/s 146(1) Cr.P.C. It was submitted that the petitioner is in possession of the plots but since respondents 1 and 2 are residing nearby the plots in question, therefore only to encroach upon the plots of the petitioner, they damaged the boundary wall of the plots of the petitioner. Therefore the petitioner lodged an FIR at PS Jawahar Circle Jaipur, wherein proceedings u/s 107 and 116 Cr.P.C. have been initiated against the respondents to bound down them. The SHO Jawahr Circle filed complaint u/s 145 Cr.P.C. before the ADM and ADM rightly passed order of attachment taking into consideration that there was strong apprehension of breach of peace. (c) Without holding any enquiry the Additional Sessions Judge held that the respondents 1and 2 are in possession of the plots in question. The enquiry has to be conducted by the ADM. The case is pending and no final order was passed by the ADM. Only the ADM can pass an order on the issue of possession after taking evidence of both the parties. The Additional Sessions Judge assumed the powers of the ADM and held that the respondents l and 2 are in possession of the plots and that too without holding any enquiry. (d) The respondents l and 2 have alleged in the revision petition that they are running the School in the name of Navodya Public School and they are in possession of the plots in question. It is absolutely false on the part of the respondents l and 2 submit that they are the title and possession holders of the plots in question. It is true that they are running the school in the name of Navodya Public School, but the school is on plot No. A25-26, Mother Teressa Nagar Malviya Nagar and not on the plots of the petitioner. (e) In the complaint it has been specifically mentioned that there is a prima facie evidence that in relation to the possession of the plots in question, there is likelihood of breach of peace and hence in case if the property is attached, it would result in eminent danger of peace. It was a case of emergency in nature and therefore looking to the facts and material available on record, the ADM rightly passed the order on 16.12.2008. 4. Mr. R.K.Daga, learned counsel for the respondents l and 2 and Mr. Piyush Kumar, Public Prosecutor opposed the arguments of the petitioner. Mr. R.K. Daga, placed reliance on the decision of Madras High Court in M. Krishnamoorthy vs. P.M. Neelamegham and others ( 2003 Cr.L.J. 3820), Madan Lal and others vs. State of Rajasthan (1999 Cr.L.J. 3077, Nathi vs. Patori and another (1981 Cr.L.J. 1833) and Maharjahan and others vs. State of Delhi and others (2004) 13 SCC 421. 5. Before proceeding further it would be necessary to have a look at section 145 Cr.P.C., the same reads as under : "145. Procedure where dispute concerning land or water is likely to cause breach of peace.-- (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub- section shall be served and published in the manner laid down in sub-section (3)." 6. Under sub-section (1) of Section 145, the Executive Magistrate has to satisfy himself that a dispute likely to cause a breach of peace in his jurisdiction exists concerning any land or water, either on a police report or upon other information and on being so satisfied, he is to make an order in writing stating the grounds of his satisfaction and requiring the parties concerned to the dispute to attend his Court on a specified date and time and put in written statements of their claims in respect of actual possession of the subject of dispute. The requirements in the above sub-section are the satisfaction of the Executive Magistrate about the existence of a dispute likely to cause breach of peace and making an order in writing stating the grounds of satisfaction and requiring the parties to attend his court on a specified date and time by putting written statements. In short, sub-section (1) contemplates the passing of order by the Executive Magistrate and as per sub-section (3), that order has to be served in the manner provided by the Code for the service of summons upon persons as directed and one copy has to be published by affixture at or near the place of the subject of dispute. 7. Under sub-section (4) of Section 145, the Executive Magistrate is required to peruse the statements put in and hear the parties and receive all evidence produced and decide as to whether any and which of the parties was in possession of the subject of dispute on the date of the order passed by him under sub- section (1). It is also provided that if it appears to him that any party has been forcibly and wrongfully dispossessed within two months next before the date on which a police report or other information was received by him or after that date and before the date of his order under sub- section (1), the Executive Magistrate may treat the party so dispossessed as if he had been in possession on the date of his order under sub- section (1). 8. Under sub-section (5) of Section 145, if the Executive Magistrate, at the end of the enquiry, comes to the conclusion that no such dispute likely to cause a breach of peace exists or has existed, he shall cancel the order passed under sub-section (1) and if it is not cancelled, that shall be final. 9. In M. Krishnamoorthy vs. P.M. Neelamegham and others ( 2003 Cr.L.J. 3820), the Madras High Court in para 11 of the judgment held as under : “11. In the present case, there is no dispute with regard to the fact that the Revenue Divisional Officer cum Sub Divisional Magistrate has not passed order under sub-section (1) of Section 145 in the matter. He has only issued summons in Na.Ka.Aa.1/2190/2002, dated 27.3.2002, requiring the parties to attend the enquiry to be held on 28.3.2002 at 11.00 a.m. After hearing the parties, he has passed order in Na.Ka.A.1/2190/2002, dated 9.5.2002, under sub-section (1) and subsection (4) of Section 145. In other words, he exercised jurisdiction under Sections 145(1) and 145(4) at the same time and has chosen to pass the impugned order. The power of the Executive Magistrate to pass an order under sub-section (1) is at the preliminary stage and the power to pass an order under sub-section (4) is after enquiry, namely, in the final stage. Both the orders cannot be clubbed in a single order. The very fact remains that the Revenue Divisional Officer cum Sub Divisional Magistrate has not passed preliminary order under sub-section (1) and the entire proceedings are vitiated. It is not known as to whether the Executive Magistrate was satisfied as to the existence of a dispute likely to cause a breach of the peace and the grounds on which he was so satisfied and even in the impugned order, nothing is stated in this regard. We find that there is no application of mind by the Executive Magistrate and he has not followed the mandatory provisions in Section 145 Cr.P.C. and the order passed by him in Na.Ka.A.1/2190/2002, dated 9.5.2002, is illegal.” 10. It is clear that the Madras High Court in the above case taken note of the fact that without passing any order under section 145(1) Cr.P.C. the SDM or Magistrate cannot pass order under section 145 (4) Cr.P.C. and the proceedings as a whole were quashed. 11. In Madan Lal and others vs. State of Rajasthan (1999 Cr.L.J. 3077), this Court held as under : “5. I have given the matter my thoughtful consideration. Whenever an Executive Magistrate is satisfied that a dispute, likely to cause a breach of peace, exists concerning any land, he may make an order u/s. 145(1) Cr.P.C. Thereupon the parties are called upon to file their respective claims. An order under sub-section (1) of section 146 Can be passed by the Executive Magistrate after making an order under sub-section (1) of section 145 on the existence of any of the three conditions ; (i) If the magistrate considers the case to be one of the emergency, (ii) if he decides that none of the parties was in possession of the subject of dispute, (iii) if he is unable to satisfy himself as to which of the parties was in possession of the subject of dispute.” “ 7. A reading of the orders makes it clear that the order of attachement and appointment of receiver has been passed without proper application of mind. There is no finding recorded that any of the conditions specified in section 146(1) Cr.P.c. existed. It is further to be noticed that is the case of Madan Lal (father) that the land in dispute is his self acquired property. The question of possession shall be decided by the Magistrate in the proceedings under section 145 Cr.P.c. But as it is not borne out by the material on record that the case is one of emergency as to pass order u/s. 146 (1) the order is liable to be set aside.” 12. I have gone through the judgment of the Additional Sessions Judge. The learned Additional Sessions Judge held that the SDM without complying with the provisions of Section 145 (1) Cr.P.C. passed the order of attachment and appointment of receiver under section 146 Cr.P.C. The SDM only issued notice under section 145(1) Cr.P.C. and without deciding the proceedings under section 145 (1) Cr.P.C. he passed order under section 146 Cr.P.C. appointed receiver and attached the property in dispute. As per the ratio laid down in the Madras High Court, and this Hon'ble Court as mentioned above and as per the provisions of section 145 Cr.P.C. and 146 Cr.P.C., the order of the Additional Sessions Judge is perfectly in accordance with law. There is no illegality or infirmity in the order passed by the Additional Sessions Judge. The order is just and proper. 13. For these reasons the revision petition is dismissed. As the main petition has been dismissed the stay application also stands dismissed. (Mahesh Chandra Sharma) J. OPPareek/