Gopal Krishan Vyas, J. - (1.) IN this criminal miscellaneous petition filed under Section 482, Cr.P.C., the Petitioners have made prayer for quashing the judgment dated 10.12.1999 passed by the Assistant Collector & Executive Magistrate, Makrana in Criminal Case No. 12/83 (5/97), so also, prayed that judgment dated 13.09.2006 passed by Addl. Sessions Judge, Parbatsar in Criminal Revision No. 17 -A/2000, to the extent of handing over the possession of the attached area to the receiver till the civil suit is decided may be set aside and order may be passed to hand over possession of the mine area measuring 70' X 75' of mine No. 204 to the Petitioners to avoid abuse of process of law and to secure the ends of justice.
(2.) AT the threshold, it is submitted by learned Counsel for the Petitioner that initially upon the complaint filed under Section 145/146, Code of Criminal Procedure by the Respondent, an order was made by the Assistant Collector -cum -Executive Magistrate, Makrana on 10.12.1999, whereby, the Respondents were given possession of the mine in question. Against said judgment, a revision petition was preferred by the Petitioners before the Addl. Sessions Judge, Parbatsar, being revision petition No. 17 -A/2000. Learned Addl. Sessions Judge, Parbatsar passed order on 13.09.2006, whereby, order dated 10.12.1999 was quashed to the extent of handing over possession to the Respondents and passed order that till disposal of the civil suit possession of the disputed land will remain with the receiver and, after judgment of the civil Court, the matter may be decided by the Executive Magistrate in accordance with law. Learned Counsel for the Petitioners submits that as per judgment of this Court passed in S.B. Criminal Kishanlal Saini v. State and Ors. Revision Petition No. 490/2010, it has been held by this Court while following the judgment of the Supreme Court, reported in, 1985 Cri.L.R 57 that civil suit as well as revenue suit, if pending in regard to the same land, no proceedings under Section 145 and 146 (1) before a criminal Court can run simultaneously. But, in this case, even the civil suit filed by the Respondent has been decided by the Civil Court vide judgment dated 05.08.2008, therefore, as per order of the revisional Court, the Executive Magistrate, Makrana is required to proceed in the matter in accordance with law. In this view of the matter, direction may be given to the Assistant Collector cum Executive Magistrate, Makrana to hand over possession of the disputed mine to the Petitioners.
(3.) PER contra, learned Counsel appearing on behalf of the Respondent submits that appeal against the judgment passed by the civil Court is pending, therefore, it cannot be said that the matter has been adjudicated by the civil Court. Hence, the Petitioners are not entitled to take possession of the disputed mine. Further, it is argued that as per various pronouncements of the Hon'ble Supreme Court, even if civil proceedings are going on, then also, the Executive Magistrate can proceed under Section 145/146, Cr.P.C., therefore, it is prayed that the petition may be dismissed. After hearing both the parties, I have perused the order passed by the revisional Court which reads as under: ifj.kkeLo:i fuxjkuhdrkZx.k dh vksj ls izLrqr fuxjkuh vkaf'kd :i ls Lohdkj dh tkdj fo}ku v/khuLFk U;k;ky; }kjk ikfjr vk{ksfir vkns'k fnukad 10 - 12 - 1999] fookfnr Hkwfe dk dCtk xSj fuxjkuhdrkZx.k dks lqiqnZ fd;s tkus rd dh lhek rd vikLr fd;k tkrk gS A fo}ku vf/kuLFk U;k;ky; dks funsZ'k fn;s tkrs gSa fd bl izdj.k ls lacaf/kr nhokuh ewy okn esa flfoy U;k;ky; dk fu.kZ; izkIr ugha gks tkrk] rc rd fookfnr Hkwfe dks fjfloj ds dCts esa j[kk tkos vkSj flfoy U;k;ky; dk fu.kZ; izkIr gksus ij bl izdj.k esa fof/kuqlkj dk;Zokgh djs A;