Bombay High Court
Pradeep Pandurang Jadhav vs The State Of Maharashtra And Others on 3 January, 2025
2025:BHC-AUG:538
924WP1584-24.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
924 CRIMINAL WRIT PETITION NO. 1584 OF 2024
Pradeep pandurang Jadhav,
Age : 43 years, Occu: Agri/Business,
R/o. Plot No. 19, Walchand Bapuji Nagar,
Dhule, Dist. Dhule. ...Petitioner
versus
1) The State of Maharashtra
Through Secretary, Dept. of Home Affairs,
Mantralaya, Mumbai
2) The Police Inspector
Mohadi Nagar Police Station,
Dhule.
3) Kavita Shivajirao Khairnar
Age: 57 years, Occu: Household,
4) Shivaji Shenpadu Khairnar
Age: 68 years, Occu: Service
Resp No. 3 & 4 R/o. Pandav Nagar, Nagaon Bari,
Dhule, Dist. Dhule.
5) Anil Prabhakar Deshmukh
Age: 68 years, Occu: Business
6) Sunil Prabhakar Deshmukh
Age: 42 years, Occu: Business
Resp No.5 & 6 R/o. Plot No.11,
Shriram Colony, Sakri road, Dhule,
Dist. Dhule. ...Respondents
....
Mr. Mahesh Kalidasrao Bhosle, Advocate for the Petitioner
Ms. Chaitali Chaudhari-Kutti, APP for Respondent-State
Mr. H. V. Tungar h/f Mr. S. A. Kulkarni, Advocate for Respondent
No.2
....
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CORAM : Y. G. KHOBRAGADE, J.
DATE : 03.01.2025
Oral Judgment :-
1. Rule. Rule made returnable forthwith. With the consent of
both the sides, it is heard finally at the stage of admission.
2. By the present Petition, the Petitioner takes an exception
to the order dated 02.08.2024 passed by the learned Sub-Divisional
Officer in Criminal Procedure Code 145 APPEAL/151A of 2024
(Mohadi Upnagar).
3. Having submissions canvassed on behalf of both the sides
and on perusal of record, only issue arises is that, Whether the Sub-
Divisional Officer having appellate jurisdiction to entertain the appeal
arising out of order passed under Section 145 of the Criminal
Procedure Code by the learned Executive Magistrate?
4. On face of record, it appears that, on 08.06.2023, the
informant lodged an oral report with Respondent No.2 Mohadi
Upnagar Police Station, Dhule alleging that, she had started
construction on plot No.19, situated in Survey No.13. The contract of
construction was given to the Respondent Nos. 5 and 6. As per the
agreement, the Respondent Nos.5 and 6 were supposed to complete
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the work and to handover possession on 31.01.2011. The Informant
further alleged that though she paid entire amount of the work under
the contract, however, the building material including teak wood and
remaining material were shifted at some other place without her
consent. When she inquired with the Respondent Nos. 5 and 6 about
the same, they demanded extortion of money of Rs.5 Lakhs. So also,
the Respondent Nos. 5 and 6 entered into an agreement with the help
of present Petitioner Pradeep Pandurang Jadhav and illegally sold her
bungalow/house. On the basis of said report a Crime No.160 of 2015
was registered with Respondent No.2 Mohadi Upnagar Police Station,
Dhule. The Respondent No.3 informant further alleged that, the
Respondent Nos. 5, 6 and the Petitioner in collusion got executed
sale deed of her house on the basis of false and fabricated documents
and handed over possession of her house in favour of the Petitioner.
On the basis of said Report, the A. P. I. of Mohadi Upnagar Police
Station submitted a proposal under Section 145 of the Criminal
Procedure Code with the Executive Magistrate, Dhule for necessary
action.
5. On 07.11.2023, the learned Executive Magistrate, Dhule
provided opportunity of hearing to both sides i.e. Petitioner and
Respondent Nos. 3 to 6. The learned Executive Magistrate held that
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the Respondent Nos.3 & 4 Kavita Shivajirao Khairnar (informant) and
Shivaji Shenpadu Khairnar have already filed Special Civil Suit No.76
of 2015 before the Civil Court in respect of same property which is
the subject matter of the Report lodged by the Respondent No.3 and
the said suit is pending. Therefore, as per the provisions of Section
145 of the Criminal Procedure Code, the learned Executive Magistrate
has declined to pass any protective order, however, parties to the
proceeding are directed to maintain Law and Order.
6. Being aggrieved by the said order, the present Respondent
Nos. 3 and 4 filed Appeal before the Sub-Divisional Officer. On
02.08.2024, the Sub-Divisional Officer passed the impugned order
and held that, since 2011 civil dispute is in existence in respect of plot
No.19 out of survey No.13. The said plot is mutated in the name of
Respondent No.3, but the said plot is in possession of the present
Petitioner. Since Civil Suit is pending before the Civil Court
pertaining to the said plot, hence, disposed off proceeding, however,
both the parties are directed to maintain law and order.
7. No doubt, the learned counsel appearing for the
Respondent Nos. 3 and 4 canvassed that, during the pendency of
Appeal before the Sub-Divisional Officer, the Petitioner has filed
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application for disposal of the appeal for want of jurisdiction and the
Respondent Nos. 3 and 4 replied the said application. The
Respondent Nos. 3 and 4 specifically stated that under Section 59(a)
of the Maharashtra Land Revenue Code, the Sub-Divisional Officer
having jurisdiction to entertain the appeal against the order passed by
the Executive Magistrate under Section 145 of the Criminal Procedure
Code, therefore, the learned Sub-Divisional Officer passed the
impugned order and appeal is maintainable before the Sub-
Divisional Officer.
8. In the case of K. Pounrajan V. Collector, Chennai District,
Chennai and others, 2003 SCC Online mad 938 : 2004 Cri LJ 1465
the Madras High Court in Para Nos. 15 to 18 observed as under.
15. At the outset the big question that would arise in the mind
of everyone is ‘whether the police could register a case under
Section 145, Cr.P.C. as it comes to be seen in the registering of the
case in Cr. No. 1055/2002 by K-10 Koyambedu Police? A
complaint could be given by the aggrieved party and the case
could be registered only under the specific provisions of the
criminal law for commission of certain specific offences and this
Court wonders how a case under Section 145, Cr.P.C. could be
registered by the police wherein nowhere it is provided under
law for case to be registered under Section 145, Cr.P.C. by the
police.
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16. Secondly, the object sought to be achieved under Section
145, Cr.P.C. being prevention of breach of peace and tranquility in
the area, the Executive Magistrate concerned is only empowered
to initiate a proceeding under Section 145, Cr.P.C. either based on
a report by the police or on his own information and on being
satisfied that there exists a breach of peace and tranquility to the
subjects regarding a dispute concerned with the land, water,
fisheries, market place etc. the said Magistrate, in order to
prevent the breach of peace and tranquility to the subjects, could
initiate such proceeding within his jurisdiction.
17. Thirdly, the upper forums of law have time and again
decided that when a civil case has already been initiated and a
restraint order has been passed by the civil form regarding the
same subject matter, no proceeding under Section 145, Cr.P.C
would arise and the Executive Magistrate is not entitled to
initiate a proceeding of that nature.
18. Fourthly, if on such a proceeding initiated under Section
145, Cr.P.C. any order is passed by the Executive Magistrate,
whether he is the Taluk Magistrate or the Sub Divisional
Executive Magistrate, the same could be testified only on revision
before the High Court within the powers conferred on the
jurisdiction High Court under Sections 397, 401, 482, etc. and no
other authority, much less the District Collector, has been
conferred with any power to testify the validity of the order
passed by the Executive Magistrate much less on appeal.
9. In the case of Yadaorao Nathuji Kokude V. State of
Maharashtra and Others, 1976 Mh.L.J. Page 31 in para No.13
observed as under.
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13. In my opinion, neither under the old Code or new Code
of Criminal Procedure a right is conferred on any party to
invoke the revisional jurisdiction of the High Court. Therefore,
no vested right of the party is affected by the changes effected
in the new Code which gives powers to Sessions Judges to call
for and examine the record of any proceeding before any
inferior Criminal Court situate within their local jurisdiction as
provided in section 397 to 399 of the new Code. In respect of
the revisional powers I may refer to the observations of the
Supreme Court in Pranab Kumar Mitra v. State of West Bengal
which are as under:
“The revisional powers of the High Court vested in it by
section 439 of the Code read with section 435, do not create
any right in the litigant, but only conserve the power of the
High Court to see that justice is done in accordance with the
recognised rules of criminal jurisprudence, and that subordinate
criminal Courts do not exceed their jurisdiction abuse their
powers vested in them by the Code.” It will be clear, therefore,
that to file a revision is not a right in the litigant and as I have
stated earlier, section 484 does not save such a right of litigant
to say that he has a right to file revision application against an
order which has been passed after coming into force of the New
Code by following the provisions of the old Code of Criminal
Procedure. In my opinion, as the decision was given after
coming into force of the New Criminal Procedure Code, in the
instant case, the non-applicants filed a revision application in
the Sessions Court as provided under section 399 of the new
Criminal Procedure Code. They were perfectly justified in doing
it and the learned Additional Sessions Judge was also perfectly
justified in entertaining it after it was made over to him for
disposal by the learned Sessions Judge, Bhandara. 1, therefore,7 of 9
(( 8 )) 924WP1584-24hold that there is no merit in the contention of the learned
Advocate that the Additional Sessions Judge Bhandara, or the
Sessions Judge, Bhandara had no initial jurisdiction to entertain
the revision application.
10. In the case in hand, the Respondent Nos. 3 and 4
questioned the legality and validity of order dated 07.11.2023
passed by the learned Executive Magistrate, Dhule under
Section 145 of the Criminal Procedure Code before the Sub-
Divisional Officer which has no jurisdiction as per law laid
down in the case of K. Pounrajan V. Collector, Chennai District,
Chennai and Yadaorao Nathuji Kokude, cited (supra).
11. Section 59 of the Maharashtra Land Revenue Code
provides for summary eviction of person unauthorisedly
occupying land, which is as under:
Any person unauthorisedly occupying, or wrongfully in
possession of any land-
(a) to the use or occupation of which by reason of any of the
provisions of this Code he is not entitled or has ceased to be
entitled, or
(b) which is not transferable without the previous permission
under sub-section (2) of Section 36 or by virtue of any condition
lawfully annexed to the tenure under the provisions of Sections
31, 37 or 44, may be summarily evicted by the Collector.
12. Sec. 247 (1) of the Maharashtra Land Revenue Code
provides for Appeal and appellate authorities, which reads as under :
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(( 9 )) 924WP1584-24(1) In the absence of any express provisions of the Code, or of
any lain for the time being in force to the contrary, an appeal shall
lie from any decision or order passed by a revenue or survey
officer specified in column I of the Schedule E under this Code or
any other law for the time being in force to the officer specified
in column 2 of that Schedule whether or not such decision or
order may itself have been passed on appeal from the decision of
order of the officer specified in column I of the said Schedule:
Provided that, in no case the number of appeals shall exceed two.
13. On the plain reading of Sec. 59 and 247 of
Maharashtra Land Revenue Code it appears that, the learned
Sub-Divisional Officer is not entrusted with the appellate
powers to testify correctness, legality and validity of order
passed by the learned Executive Magistrate u/s 145 of the Cr. P.
C.. However, in the case in hand, the learned Sub-Divisional
Officer exercised powers being appellate authority and passed
the impugned order on 02.08.2024, which is apparently
without jurisdiction and non est, hence, it is liable to be
quashed and set aside. Accordingly, the impugned order dated
02.08.2024 passed by the learned Sub-Divisional Officer is
hereby quashed and set aside. The Writ Petition is allowed in
terms of prayer Clause (B). Accordingly, Rule is made absolute.
[ Y. G. KHOBRAGADE, J. ]
HRJadhav
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