DINESH CHAND Vs. CHIRANJILAL AND OTHERS

JUDGEMENT

(1.) This petition under Sec. 482 Cr.P.C. has been filed against the order dated 16.4.1991 passed by the Addl. Sessions Judge No. 2 Bharatpur whereby he set aside the order dated 199.1985 passed by the Executive Magistrate-cum-Asstt. Collector Bayana under Sec. 145 Cr.P.C.

(2.) The brief facts of the case are that the petitioner filed art application before the Executive Magistrate Bayana that he is owner and is in possession of the property in dispute for which the non petitioner No. 2 Ramdas is adamant to dispossess him and encroach upon the same on the basis of might and show of force resulting in reasonable apprehension for breach of peace. An application for appointment of Receiver and attachment was also made. Then Exeoutive Magistrate Bayana attached the property and the SHO Rupvas was appointed as a Receiver. Against the said order, the respondent No. 2 moved the Executive Magistrate for dropping the proceedings as the civil suit was pending in the court of MJM Bayana and the application for injunction was dismissed in the said suit against which the appeal was filed to the District Judge, Bharatpur who stayed the operation of the order of the MJM. The application of the non-petitioner No.2, Ramdas, was dismissed by the Executive Magistrate and it was held that the proceedings under Sec. 145 Cr.P.C. cannot be dropped as the civil right with regard to the property has not been decided by the civil court as yet. He also came to the conclusion that there was reasonable apprehension for breach of peace if the property is not attached. Against the above order of the Executive Magistrate a revision petition was filed before the Addl. Sessions Judge No.2 Bharatpur who set aside the order of the Executive Magistrate dated 19.9.1985 and ordered to drop the proceedings under Sec. 145 Cr.P.C. It is against this order that the petitioner is aggrieved.

(3.) It is submitted by the learned counsel for the petitioner that the Addl. Sessions Judge has not kept in mind that the civil right with regard to the property has not yet been decided finally and there was reasonable apprehension for breach of peace with regard to the property in dispute. It is submitted that the order passed by the Executive Magistrate was composite under Sec. 145 & 146 Cr.P.C. and a composite order could be passed by the Executive Magistrate, who has sufficient power to attach the property and appoint receiver.