SB Cr. Misc. Petition No.1118/2004 Bhakhra Vs. State & Ors { 1 } S.B. Cr. Misc. Petition No.1118/2004 Bhakhra vs State of Rajasthan & Ors. DATE OF ORDER : - 8.7.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Vijay Bishnoi, for the petitioner. Mr.Vijay Purohit, for the respondent. Mr.VR Mehta, PP. <><><> Heard learned counsel for the parties. The petitioner is aggrieved because of the reason that learned SDM, Sanchore by order dated 8th Oct., 2004 refused to deliver the possession of the attached property in spite of the fact that in final order passed under Section 145 Cr.P.C. dated 27th May, 2002 declared the petitioner to be entitled for possession finding his possession on the date of preliminary order and two months there before. The facts which are not in dispute are that by order dated 27th May, 2002 the proceedings under Section 145 Cr.P.C was finally decided by the SDM, Sanchore declaring the petitioner's possession and his entitlement for the possession of the property, which was attached under Section 146 Cr.p.C. Against the said order of the SDM dated SB Cr. Misc. Petition No.1118/2004 Bhakhra Vs. State & Ors { 2 } 27th May, 2002 a criminal misc. petition no.479/2002 was preferred by the non – petitioner contesting parties,which was dismissed by this Court by order dated 11.2.2004 accepting the finding of the learned SDM regarding possession of the petitioner. The petitioner thereafter, submitted an application for delivery of the possession of the attached property. The said application was rejected by the learned SDM,which according to learned counsel for the petitioner was due to the fact that it was submitted before the learend SDM that the order passed by this Corut in SB Cr. Misc. Petition No.479/2002 is under challenged before the Hon'ble Supreme Court. Today, learned counsel for respondent fairly and frankly admitted that the said petition preferred before the Hon'ble Supreme Court also stand dismissed by order dated 13th Sept., 2004 passed in Special Leave to Appeal (Cr.) Petition No.3701/2004. In view of the above fact that proceedings under Section 145 Cr.P.C. terminated in favour of the petitioner there was no lawful reason before the Executive Magistrate to refuse the delivery of SB Cr. Misc. Petition No.1118/2004 Bhakhra Vs. State & Ors { 3 } possession to the petitioner, rather, the learned Executive Magistrate was under legal obligation to deliver the possession of the property in dispute to the petitioner. At this juncture, the court deem it proper to observe that Executive Magistrate has not dealt with the matter properly and in a case where a final decision was given in favour of the petitioner under Section 145 Cr.P.C. declaring his possession since 1998 and holding that he is entitled to possession then it was the duty of the SDM to put the party in possession and the court should not have delayed the proceedings on any flimsy grounds and without there being any order of the competent court by which the petitioner could have been denied the deliver of possession. The immovable property which is dealt with by the Executive Magistrate under Section 145 Cr.P.C. and appointment of receiver and, thereafter, non- delivery of possession to the entitled party is a normal practice which is not adopted by the judicial courts when prayer for appointment of receiver made by the parties in civil litigation. At this juncture, this Court also observed that the agricultural land is the source of income of SB Cr. Misc. Petition No.1118/2004 Bhakhra Vs. State & Ors { 4 } the villagers. It is said that 80% of the population depend upon the agricultural income then virtually it is denying livelihood of parties when the entitled party is not delivered possession. The proceedings under Section 145 Cr.P.C. is only for the purpose of deciding question of actual physical possession and not the right, title or interest in the property. In view of the above reasons, it is all the more necessary that such proceedings should be decided with promptness as well as with firmness and in case the situation is found emergent, the property is required to be attached and if court reaches to the conclusion that party entitled to possession then that view of the court must be given respect by the court itself by delivery of the fruits to the entitle person, who is entitled to possession in the opinion of the court. Delivery of possession in such circumstances can only be denied when there is a positive order against delivery of possession to the successful party passed by the competent court and the Executive Magistrate should not on imaginary ground stay the delivery of possession to the parties. In this case, six years have passed to the dropping of SB Cr. Misc. Petition No.1118/2004 Bhakhra Vs. State & Ors { 5 } proceeding under Section 145 Cr.P.C.. Within this time a regular suit could have been decided, deciding the controversy with respect to the right, title and interest of the party and in that suit, appropriate orders can be passed not only of injunction but also of attachment of the property then if the proceedings under Section 145 Cr.P.C. are dealt with in this manner, then very existence of provision of law cannot have any justification unless the proceedings are taken up and decided with promptness by Executive Magistrate level. In the present case as per the learned counsel for the petitioner the regular suit and appeal by first appellate court have been decided by this time. In view of the above, the misc. petition is allowed accordingly and the proceedings under Section 145 Cr.P.C. pending before the court below are quashed. (PRAKASH TATIA), J. c.p.Goyal/-