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Faiyaj Ali And Ors v. State Of Rajasthan And Ors

Faiyaj Ali And Ors v. State Of Rajasthan And Ors

(High Court Of Rajasthan, Jodhpur Bench)

S.B. Criminal Misc. (Pet.) No. 2237/2016 and S.B. Criminal Revision Petition No. 511/2016 | 06-04-2022

Dinesh Mehta, J.

1. The present misc. petition (S.B. Criminal Misc. Petition No. 2237/2016) filed by the petitioners under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), arises out of the order dated 10.05.2016, passed by the learned Additional Sessions Judge, Parbatsar, District Nagaur (hereinafter referred to as 'the revisional Court'), vide which the revision filed by Faiyaj Ali & Ors. was partly allowed and the order dated 26.08.2015, passed by learned Sub-Divisional Magistrate, Makrana (hereinafter referred to as 'the trial Court') was set aside to the extent of appointment of receiver.

2. The facts relevant for the present purposes are that Station House Officer, Makrana filed an application under Section 145 of the Code before the learned trial Court, inter-alia, stating that in light of the earlier incident of mutual scuffle between the parties involved, there is likelihood of peace and tranquility being disturbed.

3. It was prayed by the Station House Officer, Makrana that the disputed mine No. 49/1A situated in Kalanada, Ulodi range, Makrana be attached and a receiver be appointed to protect the property and to maintain peace and tranquility so also law and order situation.

4. Pursuant to the application, the learned Sub-Divisional Magistrate, Makrana, in exercise of powers under Section 145 of the Code, passed an ad-interim order on 12.05.2016, attached the entire mine (being Mine No. 49/1A) in possession and appointed the Station House Officer, Makrana to be a receiver of the property.

5. Faiyaj Ali & Ors. (petitioners in S.B. Criminal Misc. Petition No. 2237/2016) preferred a revision petition against the above referred interim order, passed by the learned trial Court.

6. The learned revisional Court partly allowed the revision and set aside the order of the learned trial Court to the extent of appointment of receiver; the attachment was however maintained.

7. The learned revisional Court apparently allowed the revision petition, considering the claim of the respondents (Mohd. Yusuf & Ors.) that the petitioners (Faiyaj Ali & Ors.) are in possession of half of the contentious mine. Said fact/admission of the respondents (Mohd. Yusuf & Ors.) prevailed over the Court, but since the mining activities had been closed by the mining department, it was thought that there was no need of appointing receiver.

8. S.B. Criminal Misc. Petition No. 2237/2016 has been filed by Faiyaj Ali & Ors. with a limited grievance that the revisional Court has wrongly recorded them to be in possession of 1/2 of the mine, whereas they were having possession of the entire mine.

9. S.B. Criminal Revision Petition No. 511/2016 has been filed by Mohd. Yusuf and Ors., essentially on the ground that the revision petition filed by the respondents (Faiyaj Ali & Ors.) was not maintainable.

10. So far as maintainability of the revision petition is concerned, the issue is no more res-integra. A Division Bench of this Court at Jaipur in Sitaram Vs. Ghasiram : D.B. Criminal Revision No. 298/1975, dated 06.12.1979 has held that against the interim order passed by the Sub-Divisional Magistrate, a revision does lie before the District Court.

11. Arguing the revision petition No. 2237/2016, Mr. Vikas Balia, learned Sr. Advocate, assisted by Mr. D.L.R. Vyas, contended that the revisional Court has gone to the extent of recording a finding that the rival parties are in possession of 1/2 share, whereas the factual situation is starkly different. He tried to satisfy the Court that his clients were having possession over the entire mining area.

12. It is contended that the Station House Officer, Makrana, with the connivance of the rival party (Mohd. Yusuf & Ors.) firstly filed an application under Section 145 of the Code and then got the mine attached and receiver appointed so as to get undue advantage or upper hand for the respondents.

13. Mr. Dinesh Godara, learned counsel for the respondents (for Mohd. Yusuf & Ors.), on the other hand, argued that his clients (Mohd. Yusuf & Ors.) were in possession of the 1/2 of the mine in question which is evident from the fact that the order of closure of the mine was served upon his clients.

14. It was also pointed out that even the petitioners (Faiyaj Ali & Ors.) had admitted in the revision petition that his clients (Mohd. Yusuf & Ors.) are having possession of 1/2 of the mine.

15. Heard.

16. In the opinion of this Court, while deciding the revision petition vide its order dated 10.05.2016, the revisional Court has recorded a prima-facie finding, based on the material available on record, which was germane to the extent of deciding the revision petition, that was filed against the interim order of attachment and appointment of receiver. By that time, neither the entire material and factual position was available with the revisional Court, nor had the parties led their evidence.

17. Such being the position, the findings rather observations made by the learned revisional Court, while deciding the revision petition, that had been filed against an ad-interim order dated 26.08.2015, are not more than prima-facie observations of the Court.

18. Having regard to the fact that the order impugned was passed way back in May, 2016 and the parties have been handed over 1/2 portion of the disputed mine, in furtherance of the order dated 10.05.2016, this Court does not deem it appropriate to dilate upon the rival submission of the parties, particularly because the orders impugned are in the nature of the ad-interim order and they shall not decide rights of either of the parties finally.

19. The trial Court before whom, the basic proceedings under Section 145 of the Code are pending shall decide the application in accordance with law, without being influenced by any observation or finding recorded by the revisional Court vide order dated 10.05.2016.

20. Considering the facts and circumstances of the case, the present petitions are disposed of with a direction to the learned trial Court to decide the application under Section 145 of the Code on the basis of oral and ocular evidence, as early as possible, preferably by 31.12.2022.

21. Stay petitions also stand disposed of accordingly.

Advocate List

  • Mr. Vikas Balia, Sr. Advocate, assisted by Mr. D.L.R. Vyas

  • Mr. Andaram Choudhary, Public Prosecutor Mr. Dinesh Godara Mr. Ashok Khilery for complainant

Bench
  • HON'BLE JUSTICE DINESH MEHTA
Eq Citations
  • 2022 (3) RLW 2424 (RAJ)
  • LQ/RajHC/2022/12747
Head Note

A. Criminal Procedure Code, 1973 — Ss. 482 and 145 — Interim order of attachment and appointment of receiver — Revisional Court recording prima-facie finding that rival parties were in possession of 1/2 share — Held, said findings are not more than prima-facie observations of Court — Parties having been handed over 1/2 portion of disputed mine, Supreme Court not delving into rival submissions of parties — Trial Court to decide application in accordance with law, without being influenced by any observation or finding recorded by revisional Court — Specific directions issued to trial Court to decide application on basis of oral and ocular evidence, as early as possible, preferably by 31.12.2022 (Paras 16 to 21) B. Criminal Procedure Code, 1973 — Ss. 145 and 151 — Interim order of attachment and appointment of receiver — Effect of — Held, such order is in nature of ad-interim order and it shall not decide rights of either of parties finally (Para 18)