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2006 DIGILAW 415 (RAJ)

Banshi v. Ram Niwas

2006-02-07

VINEET KOTHARI

body2006
Judgment Vineet Kothari, J.-This Criminal Misc. Petition is directed against the order dated 03.09.1993 passed by the learned Sessions Judge, Kotputali in Revision Petition No. 7/1992 (2/1992) whereby the revision petition filed by the petitioner against the order dated 06.01.1992 passed by the learned Sub Divisional Magistrate, Kotputali was dismissed and the order dated 06.01.1992 passed under Section 145 CrPC was upheld whereby the learned S.D.M. had directed that the possession of the land bearing Khasra No. 1591 measuring 1.72 bighas situated in Village Bheslana be taken over by the Receiver, the Tehsildar, Kotputali in order to maintain peace over the disputed land between the parties as there was an apprehension of breach of peace in relation to the land in dispute. 2. Learned Counsel for the petitioners submits that the present petitioners were in possession of the said land in dispute and the non-petitioners were trying to dispossess them from the property in dispute by the abuse of the process of law by resorting to invoke the powers of Section 145 CrPC. The complaint was filed before the learned S.D.M. on 23.03.1990 and the impugned order was passed by the learned S.D.M. on 06.01.1992 after about 2 years, shows that there could not be a grave apprehension of breach of peace over the land in question with regard to possession on the said land in question after such a long period. Therefore, no order invoking the powers under Sections 145 CrPC could be passed by the Court of learned S.D.M. Kotputali. Learned Counsel for the petitioners brought the fact to the knowledge of this Court that a civil litigation is also pending in between the parties in the Revenue Court about the same Khasra No. 1591 and therefore, the learned Executive Magistrate cannot invoke the powers of Section 145 CrPC and both the impugned orders are bad in law and deserve to be quashed and set aside. 3. Learned P.P. on the other hand, has submitted that this issue has already been decided by the Hon’ble Supreme Court wherein it has been held that where a civil litigation is pending between the parties, the criminal proceedings initiated in the Court by resort to Section 145 CrPC would be an abuse of the process of law. Reliance is placed on the case of Trilok Singh & Ors. vs. Satya Deo Tripathi, AIR 1979 SC 850 . 4. Mr. Reliance is placed on the case of Trilok Singh & Ors. vs. Satya Deo Tripathi, AIR 1979 SC 850 . 4. Mr. Vipul Jaiman, appearing on behalf of Mr. S.S. Sunda, the learned Counsel for the complainants submits that he is having no instructions in the matter now. 5. It is true, that the proceedings under Section 145 CrPC are for a limited purpose for avoiding the breach of peace and the civil dispute as regards title or possession cannot be decided in the proceedings of Section 145 CrPC. 6. In the facts and circumstances of the present case, it appears that there was not occasion for the learned Executive Magistrate to direct the parties to hand over the possession of the land in dispute to the Receiver or the Tehsildar, Kotputali after two years of the filing of the complaint and the learned revisional Court also appear to have erred in upholding the order passed by the learned S.D.M. Kotputali. 7. In view of the above, the Criminal Misc. Petition is allowed. The impugned orders dated 03.09.1993 and 06.01.1992 are quashed and set-aside. The civil disputes pending in between the parties shall only be decided by the competent Civil Courts.