Introduction:

In a decisive pronouncement reaffirming the sanctity of property rights and the correct invocation of criminal law, the Rajasthan High Court in Suresh Singh & Anr. v. State of Rajasthan [2025 LiveLaw (Raj) 255], set aside proceedings initiated under Sections 145 and 146 of the Criminal Procedure Code (CrPC) related to a property dispute involving private land. Justice Farjand Ali, who delivered the judgment, held that continued police custody over the disputed land—especially in the absence of a pending civil or revenue suit and without any specification of time duration—was both legally unsustainable and constitutionally indefensible. The Court emphasized that when the ownership and possession of land clearly rest with a private individual and there is no immediate threat to public peace or order, invocation of Sections 145 and 146 CrPC, which are meant to prevent violence arising out of property disputes, amounts to a gross misuse of legal machinery. This case originated from a complaint that the disputed land was the subject of potential unrest, leading the Sub-Divisional Magistrate (SDM) to order attachment based on a police report. However, upon closer scrutiny, both the Sessions Court and the High Court found no cogent material suggesting a breach of peace, thereby invalidating the police’s possession of the land.

Arguments by the Petitioners Seeking Attachment and Police Possession:

The petitioners, aggrieved by the Sessions Court’s decision to set aside the preliminary and attachment orders, approached the High Court with the contention that the disputed land was likely to become the centre of a violent confrontation. They relied upon the police report submitted to the SDM, which led to the initiation of proceedings under Section 145 CrPC—intended to deal with disputes likely to cause a breach of peace concerning land or water. Further, an order under Section 146 CrPC was passed for attachment of the property to ensure that neither party took law into their own hands. The petitioners argued that the police, being the executive authority responsible for maintaining law and order, were justified in advising the attachment and assuming temporary custody of the land. Their counsel submitted that even in the absence of visible violence, the “likelihood” of breach of peace was a sufficient threshold to trigger Section 145 CrPC. Additionally, they contended that by taking possession of the land, the police had acted to prevent potential escalation between disputing parties and that the SDM had exercised lawful discretion in following the police report. The petitioners also asserted that a preventive measure need not always follow the outbreak of conflict, and the authorities were merely discharging their duty to ensure peace.

Arguments by the Respondent Opposing the Attachment:

Conversely, the respondent before the High Court argued that the proceedings initiated under Sections 145 and 146 CrPC were wholly unwarranted and devoid of legal justification. Through counsel, it was asserted that the land in question had been in uninterrupted possession of the respondent and his ancestors for decades, with no rival claims or encroachments. The respondent emphasized that there was no civil suit or revenue litigation pending before any competent forum concerning the disputed land, and hence, the notion of a volatile situation was manufactured. Refuting the police report’s credibility, the respondent contended that no tangible evidence or credible material was placed on record to demonstrate an actual threat to public peace. It was a bald assertion by the police unsupported by any incident of conflict or provocation. The Sessions Court, having examined the record, rightly concluded that the invocation of preventive jurisdiction was unfounded. The respondent also pointed out that the SDM’s order failed to specify the time duration for which the land was to remain in police custody—thus making it an open-ended encroachment into private property rights. The respondent argued that such indefinite police occupation, in the absence of judicial oversight or legal basis, was violative of Article 300A of the Constitution, which protects the right to property. The plea was that the High Court should uphold the Sessions Court’s reasoned decision and restore possession of the land to the lawful occupant.

Court’s Findings and Reasoning:

After meticulously reviewing the case record, legal provisions, and precedents, the Rajasthan High Court concluded that the entire proceedings under Sections 145 and 146 CrPC were unwarranted, unsupported by law, and constituted an abuse of legal process. Justice Farjand Ali made several strong observations that highlighted systemic gaps in how executive magistrates often interpret preventive powers. The Court unequivocally stated that no incident of bloodshed, confrontation, or actual breach of peace had taken place in relation to the disputed land. Furthermore, there was no credible apprehension that such an incident was imminent. In absence of such compelling material, the preliminary order by the SDM directing parties to assert possession claims was held to be unjustified. The Court held that such orders must be grounded in cogent, reliable, and contemporaneous evidence indicating an actual or highly probable risk to public peace. Mere reliance on a police report devoid of facts is insufficient.

Justice Ali referred to the dual requirements for initiating proceedings under Section 145 CrPC: (1) the existence of a dispute concerning land or water; and (2) the dispute being likely to cause a breach of peace. Both elements, the Court held, were missing in this case. It further noted that possession of the respondent was not in dispute and that even the attachment order under Section 146 CrPC failed to mention a time frame for which the land would remain under police control. Such open-ended custody by police, without judicial authorization or pending litigation, was termed an “alien thing to the legal notion.” The High Court held that this kind of action not only violated the procedural safeguards enshrined in CrPC but also infringed upon the respondent’s constitutional rights under Article 300A (protection of property). The continuation of police possession, despite lack of adjudicatory proceedings in civil or revenue forums, was ruled to be excessive and indefensible.

Significantly, the Court directed that possession of the land be restored to the respondent. It also instructed the competent court to adjudicate future issues relating to khatedari (tenurial rights), ownership, or possession. At the same time, it reminded the police that they retain the power to maintain peace under the Bharatiya Nagarik Suraksha Sanhita (BNSS), particularly Sections 126 and 135 read with Section 170. However, it clarified that preventive powers must not be confused with the authority to arbitrarily dispossess a person from his private land, especially in the absence of any judicial determination. The Court’s tone conveyed a deep concern about overreach by administrative and police authorities, and its implications on individual property rights. By upholding the Sessions Court’s decision and dismissing the petition, the High Court affirmed that preventive provisions like Sections 145 and 146 CrPC cannot be misapplied to cover for administrative high-handedness or vague fears.