SHER SINGH RAJPUT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) None appears for the respondent No. 2 despite service.

(2.) By way of this revision, the petitioners herein have approached this Court for challenging the order dated 9.12.2016 passed by the learned Additional Sessions Judge No. 2, Nohar whereby the re-visional court accepted the revision preferred by the respondent No. 2 and set aside the order dated 18.1.2016 passed by the SDM Nohar in Case No. 5/2013.

(3.) The learned SDM, Nohar, while passing the order dated 18.1.2016 had directed withdrawal of the attachment and dropped the proceedings initiated under sections 145 and 146 Crimial P.C., 1973 relating to the disputed piece of land. The re-visional court reversed the said order and directed restoration of the proceedings under Sec. 145 Crimial P.C., 1973 and ordered that the learned Magistrate shall give opportunity of leading evidence to the parties concerned and hold a full fledged inquiry and then decide the case afresh. The respondent No. 2 at whose behest the proceedings under Sections 145/146 Crimial P.C. were initiated is the Executive Officer of the Municipality which being an autonomous institution is an ancillary of the District Administration. In this background, apparently there could not have been any reason to believe that any apprehension of breach of peace could ever arise over rival claims of possession on the disputed land. If at all, the officers of the municipal body were apprehensive that any individual was encroaching upon Municipal Board's land, then they were free to initiate appropriate legal procedure under the provisions of Municipalities Act or any other appropriate provision of law as the case may be for removing the encroachment if any. If at all, the individuals concerned were causing public nuisance, recourse was to be taken of proceedings under Sec. 133 Crimial P.C., 1973 Nevertheless, by no stretch of imagination, the Executive Officer (Municipality) could have taken recourse of proceedings under Sec. 145/146 Crimial P.C. against a private individual. For allowing the proceedings to continue, the Court would have to record a finding that both the parties i.e. the private individuals being the petitioners herein and the Executive Officer being a responsible Officer of the administration, are indulged in activities which could possibly lead to breach of peace and tranquillity over rival claims of possession on immovable property. If inquiry is allowed into such an allegation, obviously the Court would have to first presume that the endeavour of the Executive Officer amounts to an attempt to disrupt the peace and would extend to virtual misconduct by the Officer himself