1. The present petition under Article 227 of the Constitution of India has been preferred by the petitioners herein – original applicants to quash and set aside the impugned judgement and order dated 31/08/2004 passed by learned Additional Sessions Judge, Fast Track Court No.6, Bhavnagar at Mahuva below Exh.1 in Criminal Revision Application No.4 of 2004, by which, learned Revisional Court has allowed the said Revision Application submitted by the private respondents and has quashed and set aside the order dated 11/11/2003 passed by learned Executive Magistrate, Mahuva in CRPC Case No.1 of 2002 u/s.145 of the Code of Criminal Procedure.
2. That the petitioner herein filed FIR against private respondents herein before Mahuva Police Station for the offences punishable under Sections 451, 506(2) and 504 of the Indian Penal Code, which was registered as C.R.No.I-85 of 2001 alleging inter alia that the accused persons have entered into his premises illegally and dispossessed the petitioners forcefully and have given threats to them. Being apprehended, there is breach of peace, Police Inspector, Mahuva sent the report to the Executive Magistrate, Mahuva u/s.145 of the Code of Criminal Procedure. That the Executive Magistrate, Mahuva vide order dated 11/11/2003 held that private respondents were in illegal and unauthorized possession of the disputed property in question and by the said order, learned Executive Magistrate, Mahuva also declared the petitioners as owners of the disputed property in question.
Being aggrieved by and dissatisfied with the order dated 11/11/2003 passed by learned Executive Magistrate, Mahuva in CRPC Case No.1/2002, the private respondents herein preferred Criminal Revision Application No.4 of 2004 before learned Sessions Court, Bhavnagar and learned Additional Sessions Judge, Fast Track Court No.6, Bhavnagar by impugned judgement and order dated 31/08/2004 has allowed the said application and has quashed and set aside the order dated 11/11/2003 passed by learned Executive Magistrate, Mahuva in CRPC Case No.1 of 2002.
Being aggrieved by and dissatisfied with the impugned judgement and order dated 31/08/2004 passed by learned Additional Sessions Judge, Bhavnagar at Mahuva below Exh.1 in Criminal Revision Application No.4 of 2004, the petitioners herein – original applicants have preferred the present petition under Article 227 of the Constitution of India.
3. Mr.J.T.Trivedi, learned advocate appearing on behalf of the petitioners herein has submitted that learned Revisional Court has materially erred in allowing the Criminal Revision Application preferred by the private respondents and has materially erred in quashing and setting aside the order dated 11/11/2003 passed by learned Executive Magistrate, Mahuva u/s.145 of the Code of Criminal Procedure. It is submitted that as such private respondents illegally and unauthorizedly entered into premises of the petitioners and forcibly disposed the petitioners and gave threats and, therefore, no illegality has been committed by the learned Executive Magistrate in passing the order dated 11/11/2003. It is submitted that as such private respondents herein – original opponents did not even appear before learned Executive Magistrate and denied the allegations made by the petitioners. Under the circumstances, learned Revisional Court has materially erred in quashing and setting aside the order passed by learned Executive Magistrate, Mahuva u/s.145 of the Code of Criminal Procedure. It is further submitted by Mr.J.T.Trivedi, learned advocate appearing on behalf of the petitioners herein that the impugned order passed by Revisional Court is on misinterpretation of provision of Section 145 of the Code of Criminal Procedure. It is submitted that the learned Revisional Court has materially erred in holding that the proceeding u/s.145 of the Code of Criminal Procedure is required to be initiated within a period of two months from dispossession. It is submitted that as such there is no limitation provided u/s.145 of the Code of Criminal Procedure to initiate the proceeding u/s.145 of the Code of Criminal Procedure. It is submitted that limitation of two months as provided u/s.145 of the Code of Criminal Procedure would be applicable only when the learned Magistrate passes an order to restore the possession and if it is found that the petitioners are dispossessed within a period of two months from the date of initiating the proceeding u/s.145 of the Code of Criminal Procedure, learned Executive Magistrate may pass an order to restore the possession and/or direct to hand over the possession to the applicant. However, no such limitation is prescribed to initiate the proceeding u/s.145 of the Code of Criminal Procedure. Therefore, it is requested to allow the present petition.
4. Though served, nobody appears on behalf of the private respondents herein.
5. Mr.L.B.Dabhi, learned Additional Public Prosecutor has appeared on behalf of the respondent- State and has requested to pass an appropriate order considering the facts and circumstances of the case. However, he has also submitted that the order passed by learned Executive Magistrate, Mahuva declaring the petitioners as owners, cannot be sustained as the same is without jurisdiction. It is submitted that in the proceeding u/s.145 of the Code of Criminal Procedure as such the learned Executive Magistrate is not required to decide the dispute with respect to title. Under the circumstances, it is submitted that no illegality has been committed by the learned Revisional Court in quashing and setting aside the order dated 11/11/2003 passed by learned Executive Magistrate, Mahuva.
6. Heard Mr.J.T.Trivedi, learned advocate appearing on behalf of the petitioners herein and Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent – State and considered and gone through the orders passed by both the Courts below.
7. At the outset, it is required to be noted that in the proceeding before learned Executive Magistrate u/s.145 of the Code of Criminal Procedure, learned Executive Magistrate has not only held that the private respondents were in unauthorized possession of the disputed property in question but has also declared the petitioners as owners of the disputed property in question. Considering Section 145 of the Code of Criminal Procedure, learned Executive Magistrate has no jurisdiction and/or authority to decide the question with respect to title. The dispute with respect to title is required to be adjudicated and decided by the Civil Court only. Under the circumstances, the order passed by learned Executive Magistrate declaring the petitioners as owners of the land in question, was without jurisdiction and without authority of law and beyond the provision of Section 145 of the Code of Criminal Procedure. Under the circumstances, as such no illegality has been committed by the learned Revisional Court in allowing the Revision Application and quashing and setting aside the order passed by learned Executive Magistrate.
8. It is also required to be noted that learned Revisional Court has given valid reasons for quashing and setting aside the order passed by learned Executive Magistrate, Mahuva by further observing that the order passed by learned Executive Magistrate was in breach of principles of natural justice. Under the circumstances, no interference of this Court is required in exercise of powers under Article 227 of the Constitution of India.
However, observations made by learned Revisional Court that as the proceeding u/s.145 of the Code of Criminal Procedure was not initiated within a period of two months from the alleged dispossession, the same was not maintainable, cannot be sustained as there is no such limitation prescribed for initiating the proceedings u/s.145 of the Code of Criminal Procedure. If during the proceeding u/s.145 of the Code of Criminal Procedure if it appears to the learned Magistrate that any party has been forcibly and wrongly dispossessed within two months next before the date on which the report of a police officer or other information was received by the learned Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1) and in such a eventuality, the learned Executive Magistrate may pass an order to restore the possession to that party, which is wrongly dispossessed. Considering the provisions of Section 145 of the Code of Criminal Procedure, as such there is no limitation prescribed u/s.145 of the Code of Criminal Procedure more particularly limitation of two months as observed by the learned Revisional Court. Under the circumstances, the observation made by learned Revisional Court to the aforesaid extent cannot be sustained and the same deserves to be quashed and set aside and the same is hereby quashed and set aside.
However, on the other ground, the order passed by learned Revisional Court quashing and setting aside the order passed by learned Executive Magistrate is just and proper. As stated hereinabove, the order passed by learned Executive Magistrate declaring the petitioners as owners of the disputed land in question in the proceeding u/s.145 of the Code of Criminal Procedure, is without jurisdiction and the same cannot be sustained.
9. In view of the above and for the reasons stated hereinabove, the petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief, if any, stands vacated forthwith.
[M.R.SHAH,J] *dipti