Ordering Police Custody Of Land Without Specific Duration In Absence Of Pending Case 'Illegal': Rajasthan High Court Quashes S.145 CrPC Order

While setting aside attachment proceedings over a disputed property Rajasthan High Court held that if the land in question belonged to a private individual, passing an order that failed to specify duration of police custody of the land rendered the direction illegal, vague and unsustainable.

Justice Farjand Ali further observed that continues possession of the land by the police in absence of any pending civil or revenue litigation in its relation was not only unjustified, rather, an alien thing to legal notion.

"This Court is of the considered view that no incident of bloodshed or breach of peace has occurred in the present case with regard to retention or forceful taking possession of an immovable property, therefore, initiation of proceedings under Sections 145 and 146 of the Cr.P.C. appears to be unwarranted and uncalled for. Furthermore, if the land in question admittedly belongs to a private individual, then passing an order that fails to specify the duration for which the property shall remain in police custody renders the direction ex facie illegal, vague and unsustainable. Additionally, it is noted that there is no civil or revenue litigation pending before any competent court concerning the said property. Accordingly, continued possession of the land by the police for forever, in the absence of any such proceedings, is not justified rather an alien thing to the legal notion. In such circumstances, it would be just and proper to restore possession to the Respondent No.2". 

Section 145 CrPC laid down procedure where dispute concerning land or water was likely to cause breach of peace.

Section 146, CrPC provided power to attach subject of dispute and to appoint receiver.

Proceedings under Section 145, CrPC were initiated in relation to a land dispute allegedly to be of such a nature so as to likely cause breach of peace. The Sub-divisional magistrate (SDM), upon receiving a police report, passed a preliminary order directing the parties to submit claims regarding possession of the land, and an order of attachment was also passed.

The respondent (before the high court) filed a plea against this order before the sessions court which set aside the preliminary order and the attachment order on the ground that there was no sufficient material to establish existence of a dispute likely to cause breach of peace. Against this the petitioner moved the High Court. 

The Court highlighted that it was an undisputed fact that the respondent was in possession of the disputed land since the time of his ancestors, and there was no dispute regarding possession.

After perusing Section 145 & 146, CrPC, as well as the precedents related to these, the Court observed that before initiating proceedings under these provisions, it had to be shown with cogent and reliable material that circumstances existed to suggest imminent danger of breach of peace or threat to public peace. It should not be a bald assertion.

Furthermore, before initiating the proceedings, there had to be a serious question of possession where it was not comprehensible as to which party was in possession of the land.

In this background, it was held that in absence of any breach of peace or imminent danger, initiating criminal proceedings under Section 145 and 146, CrPC was misuse and abuse of legal process.

Upholding the sessions court's order, the high court directed the competent court to pass orders pertaining to possession, khatedari, or ownership of the disputed property.

"The Superintendent of Police concerned shall ensure that peace and public order are maintained, especially in the event of any apprehension of breach of peace between the parties. However, nothing shall preclude the authorities from initiating appropriate proceedings for prevention of breach of peace as contemplated under Sections 126 and 135 r/w Section 170 of the BNSS," the high court added.

The plea was dismissed. 

Title: Suresh Singh & Anr. v State of Rajasthan

Citation: 2025 LiveLaw (Raj) 255

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