S.B.Cr.Misc.Petition No.1215/2006 Heera Ram vs. State & ors. 1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Heera Ram vs. The State of Raj. & ors. S.B.Criminal Misc. Petition No.1215/2006 under Section 482, Cr.P.C. against the order dated 25.8.06 passed by the learned Addl. Sessions Judge, Bhinmal in Criminal Revision No.13/2005. Date of Judgment: July 08, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. J.V.S. Deora, for the petitioner. Mr. V.R. Mehta, P.P. for the State. Mr. A.K. Acharya for the respondents. The petitioner has challenged the order passed by the learned Addl. Sessions Judge, Bhinmal whereby the learned Addl. Sessions Judge set aside the order of the learned Executive Magistrate dated 14.10.2005 by which a case under Section 145, Cr.P.C. was registered by the learned Executive Magistrate on a complaint submitted by the petitioner and by S.B.Cr.Misc.Petition No.1215/2006 Heera Ram vs. State & ors. 2 order dated 14.10.2005, the property in dispute was attached. The learned Addl. Sessions Judge set aside the order dated 14.10.2005. Hence this petition. According to the learned counsel for the petitioner the land in question is pasture land and some land of Magara, the non-petitioners, by their might, want to excavate the land. The report was submitted before the learned Sub-Divisional Magistrate to show that there is every likelihood of breach of peace and situation is emergent. The learned Executive Magistrate, satisfied from the material placed on record, registered a case under Section 145, Cr.P.C. and attached the property in dispute. It is submitted that the learned Addl. Sessions Judge committed error of law in setting aside the order dated 14.10.2005. I perused the two orders referred above and the record also. It is apparent from the order of the learned Executive Magistrate dated 14.10.2005 that the learned Executive Magistrate itself was of the view that the land in question is pasture land and the non-petitioners want to excavate the S.B.Cr.Misc.Petition No.1215/2006 Heera Ram vs. State & ors. 3 land. Since the petitioner's claim is that the land is pasture land and it can be used by all villagers and the non-petitioners have no right to destroy that pasture land and obstruct the villagers, then in fact it was a dispute concerning the right of use of land and not a dispute with respect to the claim of exclusive possession over the immovable property. Therefore, in fact the dispute could have been examined under Section 147, Cr.P.C. and not under Section 145, Cr.P.C. The learned Executive Magistrate could have converted the proceedings under Section 147, Cr.P.C. from Section 145, Cr.P.C. as per sub-section (4) of Section 147, Cr.P.C. but that has not been done. This legal aspect has not been noticed either by the learned Executive Magistrate or by the learned Addl. Sessions Judge who passed the order dated 25.8.2006. Be it as it may be. The learned Addl. Sessions Judge observed that already a civil suit is pending in relation to same property wherein a dispute about the nature of land is yet to be decided by the competent court. Since the dispute is pending in civil court with respect to same property and in S.B.Cr.Misc.Petition No.1215/2006 Heera Ram vs. State & ors. 4 that proceeding, appropriate relief can be claimed by the parties, therefore, there is no justification for continuation of two proceedings. Further more, the proceedings were dropped by the learned Addl. Sessions Judge by order dated 25.8.2006 and after two years, I do not find any reason to re- initiate the proceedings under Section 145 or even under Section 147, Cr.P.C. In view of the reasons mentioned above, there is no merit in this petition and hence the same is hereby dismissed. (PRAKASH TATIA),J. mlt