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Rajasthan High Court · body

2005 DIGILAW 2331 (RAJ)

Kanta Rani v. State of Rajasthan

2005-09-01

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the order dated 01.08.2005 passed by learned Additional Sessions Judge No. 1, Sriganganagar (for short the revisional Court hereinafter) in Criminal Case No. 11/2005 whereby the revisional Court set aside the order passed by Additional District Magistrate (City), Sri Ganganagar (for short the Executive Magistrate hereinafter) in Case No. 04/2004. Aggrieved by the order impugned, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the parties. Carefully gone through the orders passed by the revisional Court as well by the Executive Magistrate. 3. A complaint was filed before the Executive Magistrate on 23.04.2004 by Usha Devi alleging therein that by an agreement, she purchased Plots No. 125 and 126 Chak No. 6E Chhoti, Murabba No. 51 Kila No. 20; certain persons are taking possession and constructing thereon a boundary wall and, therefore, she requested that the matter may be sent to the SHO Sadar, Sri Ganganagar for investigation. A similar application was also filed by respondent No. 2, Smt. Meera Devi before the Police Station, Sadar, that by the agreement dated 21.02.2000, she purchased Plots No. 123 to 126, Chak 6E Chhoti, Murabba No. 51 Kila No. 20. She also alleged that some unknown persons are harassing her and wanted to grab her plots. On the basis of these reports, the matter was investigated through the police. The police filed a complaint under Section 145 of the Code before the Executive Magistrate on 28.04.2004 alleging therein that Plots No. 123 and 124 are in possession of Party No. 1 on the basis of Patta No. 13/75 dated 20.05.2002 and Party No. 2 Usha Devi is in possession of Plots No. 125 and 126 by an agreement executed by Gopi Ram on 212.1990. Party No. 3 Meera Devi, purchased all the aforesaid four plots by agreement from Debu Mahatma and claims possession over the said plots by an agreement. It was also averred that all the three parties are claiming their possession and with regard to the possession of the plots, there is apprehension of breach of peace, upon which the Executive Magistrate registered a case under Section 145(1) CrPC and drawn the preliminary order. It was also averred that all the three parties are claiming their possession and with regard to the possession of the plots, there is apprehension of breach of peace, upon which the Executive Magistrate registered a case under Section 145(1) CrPC and drawn the preliminary order. The notice was issued to the parties to file their respective claims and written statements with regard to their possession over the plots in question SHO Police Station, Sadar requested the Executive Magistrate to attach the plots in question by his report dated 17.05.2004. The Executive Magistrate by order dated 20.05.2004, attached the plots in question and appointed the receiver SHO, Police Station, Sadar to take the possession over the plots in question. Aggrieved by that order, Respondent No. 2, Smt. Meera Devi filed a criminal revision before the revisional Court. The revisional Court came to the conclusion that order of Executive Magistrate does not fulfill the requirement of Section 146(1) of the Code and, therefore, order attaching the plots in question was set aside. 4. It is contended by Counsel for the petitioner that report of the SHO, Police Station, Sadar shows that the matter is one of the emergency. On careful perusal of the order of the Executive Magistrate, it nowhere appears that the matter is one of emergency though the Executive Magistrate proceeded to attach the plots in question on the basis of police report but there is no satisfaction of the Executive Magistrate that the matter is one of the emergency or that he has decided that none of the parties then in such possession as is referred to Section 145 of the Code or there is no conclusion that the Executive Magistrate is unable to satisfy himself as to which of the parties was then in such possession. 5. Section 146 of the Code provides power to attach subject to dispute and to appoint receiver. 5. Section 146 of the Code provides power to attach subject to dispute and to appoint receiver. Sub-section (1) of Section 146 of the Code provides that if the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof . 6. From close scrutiny of the order of the Executive Magistrate, it nowhere appears that the Executive Magistrate satisfies that the case is one of emergency. The Executive magistrate has not recorded the evidence of parties in order to decide as to which of the parties was then in such possession or as to whether the Executive Magistrate was unable to satisfy himself as to which of them or which of the parties was then in such possession. In the circumstances, therefore, I do not find any error, illegality or perversity in the order of the revisional Court. The revision petition lacks merit and, therefore, it is dismissed. Stay petition also stands dismissed.