Research › Search › Judgment

Rajasthan High Court · body

2007 DIGILAW 1741 (RAJ)

Mahipal Singh v. State Of Rajasthan

2007-09-14

GOPAL KRISHAN VYAS

body2007
JUDGMENT 1. - Heard learned counsel for the parties. 2. In the present revision petition, the petitioner is challenging the order dated 16.8.2005 passed by the learned Sessions Judge, Balotra in Criminal Revision No. 17/2005 whereby the learned Sessions Judge set aside the order dated 15.6.2005 passed by S.D.M., Balotra in Case No. 308/2005 under Section 116(1) of the Code of Criminal Procedure for attachment of the disputed shops. 3. According to the facts, a complaint was filed by petitioner in the Court of S.D.M., Balotra under Section 145/146 Cr.P.C. stating therein, inter alia, that four shops of joint ownership of the family of petitioner and private non-petitioners No. 3 to 5 are situated in ward No. 14, Balotra and the said private non-petitioners are forcefully trying to occupy the shops occasioning the apprehension of breach of peace. The aforesaid complaint was forwarded to the S.H.O., Balotra for investigation and, after investigation, the S.H.O., Balotra made a report that there are number of criminal cases pending in between the parties and the disputed shops are lying closed. It was also reported that there is likelihood of breach of peace. The S.H.O. also prepared as site-plan memo of the disputed shops and opined that there are potent chances of fight and quarrel among the parties and tension is brewed up. Concluding his report, the S.H.O. prayed that the shops may be attached and receiver may be appointed. Consequent upon the aforesaid report made by the S.H.O., the S.D.M., Balotra, while passing a preliminary order under Section 145(1), Cr.P.C., made a composite order for attachment of the disputed property under Section 146(1), Cr.P.C. 4. Against the said order of attachment, revision petition was preferred by non-petitioners Sajjan Singh and Ranvijay Singh before the Sessions Judge, Balotra wherein, while deciding the stay application by order dated 23.6.2005, the learned Sessions Judge observed that looking to the facts and circumstances of the case the order passed by the learned S.D.M. cannot be stayed. Against order dated 23.6.2005, a petition under Section 482, Cr.P.C. was filed before this Court being S.B. Criminal Misc. Petition No. 657/2005. Against order dated 23.6.2005, a petition under Section 482, Cr.P.C. was filed before this Court being S.B. Criminal Misc. Petition No. 657/2005. While disposing of the petition under Section 482, Cr.P.C. by order dated 1.7.2005, this Court directed the learned Sessions Judge for disposing of the revision petition pending before him expeditiously, as far as possible, and, till the decision of the revision petition the status quo as it existed then was ordered to be maintained. Pursuant to the order passed by this Court, the learned Sessions Judge, Balotra finally decided the revision petition vide the impugned order dated 16.8.2005 setting aside the order dated 15.6.2005 passed by the S.D.M., Balotra with regard to attachment of the shops and remitted the case directing that Smt. Dhiraj Kanwar (non-petitioner No. 5 herein) may also be heard in the proceedings pending under Sections 145 and 146 of the Code of Criminal Procedure and decide the matter afresh. The learned Sessions Judge directed the parties to remain present before the S.D.M., Balotra on 20.8.2005. 5. Impugning the aforesaid order dated 16.8.2005, the petitioner has contended in this revision petition that the impugned order is against the facts and material available on record. Learned counsel for the .petitioner contended that the order of the revisional Court is manifestly erroneous and, so also, there was no reason and occasion for the learned Sessions Judge for quashing the order dated 15.6.2005 passed by the learned S.D.M., Balotra. It is contended that the order passed by the executive Court was perfectly legal order whereby attachment of the disputed shops was ordered consequent upon the report of the S.I l.O. made after investigation in the matter. Learned counsel for the petitioner argued that the order of the revisional Court cannot be sustained on the ground that no reasons have been assigned for setting aside order dated 15.6.2005 whereby the learned S.D.M. Specifically found that there were prominent chances of breach of peace due to clash in between the parties and with a view of preventing any untoward happening receiver was also appointed while order was made for attachment of the property in question. It is contended that while exercising revisionary jurisdiction the learned Sessions Judge has not pointed out any illegality in the order dated 15.6.2005. According to learned counsel for the petitioner, the executive Court was perfectly justified in appointing receiver after attachment of the disputed shops. It is contended that while exercising revisionary jurisdiction the learned Sessions Judge has not pointed out any illegality in the order dated 15.6.2005. According to learned counsel for the petitioner, the executive Court was perfectly justified in appointing receiver after attachment of the disputed shops. 6. It is next contended by learned counsel for the petitioner that the civil suit which was filed by Smt. Dhiraj Kanwar has nothing to do with the disputed shops but the revisional Court has, only on the ground that Smt. Dhiraj Kanwar in whose favour the unregistered will is said to be executed by late Shatrushal Singh and civil litigation is going in between the parties, set aside the order of the S.D.M. observing that without impleading Smt. Dhiraj Kanwar as party, order has been passed by the S.D.M. which is illegal. It is further contended by learned counsel for the petitioner that, in fact, the suit which wasfiled by Smt. Dhiraj Kanwar is not related to the shops in question but despite that while observing that the petitioner has deliberately concealed the material fact of the pendency of the civil suit at the time of initiation of the proceedings under Section J45/146, Cr.P.C. According to learned counsel for the petitioner, there was no ground for the learned Sessions Judge to interfere with the order dated 15.6.2005 passed by the S.D.M., Balotra. 7. Per contra, learned counsel for the non-petitioners vehemently submitted that the revisional Court has rightly exercised jurisdiction because while filing certain documents before the learned Sessions Judge, it was submitted by non-petitioner No. 5 Smt. Dhiraj Kanwar that there is will in her favour and, upon the land for which she is holding the will, shops were constructed and being the owner of the shops she had let out the shops to different persons and they were in possession of the shops as tenants. Learned counsel for the non-petitioners invited my attention towards certain documents placed on record. Learned counsel for the non-petitioners invited my attention towards certain documents placed on record. It is submitted by learned counsel for the non-petitioners that it was well within the knowledge of the petitioner that suit for possession was filed by Smt. Dhiraj Kanwar in the year 2002 for restraining the petitioner from dispossessing her from the land; meaning thereby, the pendency of the civil litigation was well within the knowledge of the petitioner at the time of initiation of the proceedings under Section 145/146, Cr.P.C. but the same was not brought to the notice of the learned S.D.M. and the learned S.D.M., therefore, passed order without hearing Smt. Dhiraj Kanwar for attachment and, accordingly, in the circumstances, the lower revisionary Court was perfectly justified in exercising jurisdiction and issuing direction to the S.D.M. to decide the matter finally afresh after hearing Smt. Dhiraj Kanwar. 8. I have perused the record and carefully considered the submissions advanced by learned counsel for the respective parties. 9. It is true that at the time of exercising revisionary jurisdiction the learned Sessions Judge was under obligation to consider the circumstances of the apprehension of breach of peace. Obviously the disputed shops have been constructed upon the land of late Shatrushal Singh and the petitioner and non-petitioners No. 3 to 5 are legal heirs of late Shatrushal Singh. It is also obvious that when the dispute with regard to the property of joint family was in question then the proper course in the circumstances was to leave the disputed property with the receiver till the decision of the proceedings under Section 145/146, Cr.P.C. However, in the present case, an important fact was not brought to the notice of the S.D.M. that there was already a civil litigation pending in between the petitioner and non-petitioner No. 5, therefore, in my opinion, when it is not disputed that civil litigation is going on, might be - not exactly with regard to the shops in question, but with regard to the land then in the circumstances, Smt. Diraj Kanwar was entitled to be heard before passing of any order of attachment. It is obvious that at the time of passing the order for attachment, before the learned S.D.M., Balotra neither Smt. Dhiraj Kanwar was party in the proceedings nor the fact about the pendency of the civil litigation was brought to the knowledge of the S.D.M. by the petitioner. When specific admitted fact with regard to pendency of civil suit is pleaded, then, in my opinion, it was proper for the revisionary Court to remand the matter for decision afresh while quashing the order of attachment which was apparently passed illegally in the aforesaid facts and circumstances. It is also required to be observed that in the proceedings under Section 145/146, Cr.P.C. no title can be decided but the proceedings is primarily intended for maintaining peace, therefore, it is open for the parties to lead their evidence before the S.D.M., Balotra for the purpose of proving that there is no likelihood of breach of peace. In view of the above, in my opinion, the learned lower revisionary Court has rightly passed the order impugned and sent the case back to the S.D.M. The impugned order does not call for any interference. 10. Consequently, the revision petition is dismissed. However, the learned S.D.M., Balotra is directed to decide the matter within a period of six months.Appeal disposed of. *******