SB Cr. Misc. Petition No.358/2001 Smt. Premi & Anr. Vs. State of Raj. & Ors. [ 1 ] S.B. Cr. Misc. Petition NO.358/2001 Smt. Premi & Anr. vs State of Rajasthan & Ors. DATE OF ORDER : - 7.7.2008 HON'BLE MR. PRAKASH TATIA, J. Mr. PN Mohanani,for the petitioners. Mr. Vineet Jain, for the respondents. Mr. JPS Choudhary, Public Prosecutor. <><><> Heard learned counsel for the parties. This petition has been preferred to challenge the order passed by the learned Addl. Sessions Judge No.1, Bhilwara in Cr. Revision Petition No.1/1999 dated 22nd June, 2001 affirming the order dated 11.1.1999 passed by the Sub Divisional Magistrate, Bhilwara in Case No.19/1996 by which the learned Sub Divisional Magistrate dropped the proceeding under Section 145(5) Cr.P.C. pertaining to Section 145/146 Cr.P.C. Brief facts of the case are that two petitioners Smt. Premi and Smt. Ganga are daughter and mother respectively they says that their ancestor, husband of petitioner no.2 Ganga and father of petitioner no.1 Premi – Laxman had some SB Cr. Misc. Petition No.358/2001 Smt. Premi & Anr. Vs. State of Raj. & Ors. [ 2 ] immovable property i.e., agricultural land. According to the petitioners they were in possession of the said property of various Khasras numbers. The non-petitioners nos. 2 to 4 are near relatives of the petitioners and they wanted to grab the land and because of that apprehension, the petitioners instituted proceedings under Section 145 Cr.P.C. on 3rd Jul, 1992 wherein the property was attached and the SHO concerned was appointed as receiver. The non-petitioners being aggrieved against the proceedings under section 145 Cr.P.C. approached this Court by preferring S.B. Cr. Misc. Petition No.366/1992. The said Cr. Misc. Petition No.366/1992 was decided by this Court vide order dated 11.1.1996. This court observed that the non-petitioners nos. 2 to 4 would be at liberty to move an application under sub-section (5) of Section 145 Cr.P.C. brining to the notice of the learned Sub Divisional Magistrate, Bhilwara that a civil suit (in fact revenue suit) is pending. In case, such an application under sub-section (5) of Section 145 Cr.P.C. is made before the learned Sub Divisional Magistrate, Bhilwara, he would be under legal SB Cr. Misc. Petition No.358/2001 Smt. Premi & Anr. Vs. State of Raj. & Ors. [ 3 ] obligation to decide the same expeditiously on merits. According to learned counsel for the petitioners, the non-petitioners nos. 2 to 4 did not move any application for dropping the proceedings under Section 145 Cr.P.C. It is also submitted that the Executive Magistrate without taking any evidence passed the impugned order and declared the possession of the non – petitioner nos. 2 to 4, which is wholly without jurisdiction as no finding could have been given by the learned Magistrate without recording any evidence on the question of possession of party to proceeding on a relevant date. In view of the above reasons, being aggrieved against the order of the learned Executive Magistrate dropping the proceedings vide order dated 11.1.1999, the petitioners preferred revision petition no.1/1999 before the Court of Addl. Sessions Judge No.1, Bhilwara, which was dismissed by the learned Addl. Sessions Judge, Bhilwara vide impugned order dated 22.6.2001. Hence, this petition under Section 482 Cr.P.C. By the petitioner. According to learned counsel for the SB Cr. Misc. Petition No.358/2001 Smt. Premi & Anr. Vs. State of Raj. & Ors. [ 4 ] petitioners both the courts below committed serious error of law in dropping the proceedings without there being any application of the non – petitioners and further the learned Executive Magistrate obtained the report from the Teshildar and on the basis of said report only dropped the proceedings holding that there is no likelihood or apprehension of breach of peace in relation to the property in question. Learned counsel for the petitioners also submitted that the proceedings was dropped on absolutely wrong assumption that suit was pending between the parties of this proceeding whereas in the suit only Ganga alone was party and Premi, daughter of Ganga was not party. However, by this time, according to both the learned counsel for the parties, the original suit has already been decided and appeal against the said decision of the trial court also has already been decided and second appeal has been decided upto the Board of Revenue. I considered the submissions of learned counsel for the parties and perused the record also. The facts are not in dispute lwhich are SB Cr. Misc. Petition No.358/2001 Smt. Premi & Anr. Vs. State of Raj. & Ors. [ 5 ] that the proceedings under Section 145 Cr.P.C. was initiated as back as in the year 1992. The property in question is not under attachment since 1999 as was dropped by the learned Executive Magistrate himself. Assuming for the sake of arguments that this Court allowed the non – petitioners to submit application under Section 145(5) Cr.P.C. for seeking relief of dropping proceedings under Section 145 Cr.P.C. and they did not submit any such application before the Executive Magistrate, yet the Executive Magistrate had power to look into the matter and examine the entire matter under Section 145(5) Cr.P.C. at its own motion. However, learned counsel for the non- petitioners pointed out that in fact, not only the application under Section 145(5) Cr.P.C. was submitted, but relevant documents were also submitted by the non- petitioners which were considered by the revisional court. When the matter has been decided by the Board of Revenue in respect of rights, title and interest of the parties and the relevant fact is that the property is not under attachment since the year 1999 then the very basis and foundation SB Cr. Misc. Petition No.358/2001 Smt. Premi & Anr. Vs. State of Raj. & Ors. [ 6 ] for which the proceedings under Section 145 Cr.P.C. might have been initiated on just ground looses all its significance because of subsequent event and the proceedings under Section 145 Cr.P.C., which is the proceeding taken in emergent situation for protecting any untoward incident on the basis of the might of the parties on spot is required to be taken with promptness and required to be concluded expeditiously and cannot be lingered on for years and in this case for decades. Every appropriate order could have been obtained by the parties in regular litigation where the rights, title and interest in the properties of the parties could have been determined. In this case, the adjudication has been given by the competent court as per the parties themselves. In the partition suit, according to learned counsel for the petitioners, partition was between the male heirs having rival claims and Ganga was formal party and Premi was not party. This fact has no relevant at all in view of the fact that Premi is daughter of Ganga and her husband Laxman and, therefore, she can claim her SB Cr. Misc. Petition No.358/2001 Smt. Premi & Anr. Vs. State of Raj. & Ors. [ 7 ] share as per her personal law through the strip of Laxman and Smt. Ganga and, therefore, she herself was not party in that litigation has no bearing in the proceedings under Section 145 Cr.P.C. Ganga was party in the partition suit, therefore, she could have or she might have presented her case and must have claimed her (Ganga's) share and might have got her share if she was entitled to any share. So far as proceeding under Section 145 Cr.P.C. is concerned, all these facts have no relevancy because in the proceedings under Section 145 Cr.P.C. only the question is to protect the parties from each other. In view of the above reasons, I do not find any just reason to interfere in the impugned order, by which the learned Executive Magistrate has dropped the proceedings under Section 145 Cr.P.C. because the reasons mentioned above as well as because of the reason that proceedings under Section 145 Cr.P.C. cannot be revived after lapse of so many years. The possession which is delivered to the non – petitioners can continue till they can be evicted in accordance with law because of the fact that in the partition decree, SB Cr. Misc. Petition No.358/2001 Smt. Premi & Anr. Vs. State of Raj. & Ors. [ 8 ] the properties are partitioned and any order passes in the proceeding under Section 145 Cr.P.C. cannot adversely effect the rights of the parties determined in regular litigation. In view of the above, I do not find any merit in this misc. petition and the same is hereby dismissed. (PRAKASH TATIA), J. c.p.Goyal/-