IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.340 of 2008 1. Jaikishun Sah , S/o Sakaldeep Sah. 2. Sri Nath Sah, S/o Ramgati Sah. 3. Mahesh Sah, S/o Sri Nath Sah. 4. Sanjay Sah, S/o Jai Kishun Sah. All residents of Bharat Kashuba, P.S.-Karakat, District-Rohtas. …… Petitioners. Versus 1. STATE OF BIHAR 2. Rup Lal Sah, S/o Sukhari Sah, R/o Bharat Kashaba, P.S.-Karakat, District-Rohtas. ….. Opposite Parties. For the petitioners: Mr. Sudhir Kumar, Advocate Mr. Krishna Ranjan, Advocate. For the O.P No.2 : Mr. Narendra Kumar, Advocate Mr. Tej Narayan Singh, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------- 5 01-07-2010 Heard counsels for the petitioners and the opposite parties. Petitioners are the second party to the proceeding initiated by the learned Executive Magistrate, Bikramganj, Rohtas being Case No. 12M/04 under section 107 of the Code of Criminal Procedure( in short the Code). A police report appears to have been submitted on 8.12.2003 indicating therein that there was apprehension of breach of peace at the hands of both the parties. Accordingly action in terms of Section 107 of the Code was recommended against them. Learned Executive Magistrate by order dated 25-10- 2004 allowed the parties to lead evidence. The first party to the proceeding (Opposite Party No. 2) led evidence. The petitioners herein could not appear and not cross-examined the witnesses, 2 although only show cause was filed. They were accordingly debarred from leading evidence. On being satisfied from the materials on record the members of the second party (petitioners herein) were directed to execute bond for maintaining peace for a period of one year. Aggrieved by the aforesaid order, petitioners preferred appeal being Criminal Appeal No. 40/11 of 2005/2005. The said appeal was heard and disposed of by the learned 1st Additional Sessions Judge, Rohtas at Sasaram by order dated 14th January, 2008. Learned appellate court having noticed the facts refused to interfere with the order passed by the learned Executive Magistrate in the said case. Hence the present revision application. Learned counsel for the petitioners while assailing the impugned orders made only one submission. It has been submitted that the impugned order was passed by the learned Executive Magistrate on 25-10-2004. The order itself records that there is bonafide land dispute between the parties. The matter has remained pending thereafter for six years. There is no allegation that during all these years any attempt to breach the peace was made in relation to the land in question by the petitioners herein(2nd party to the proceedings). It is thus contended that no useful purpose shall be served in upholding the orders impugned as the emergent situations under which the two impugned orders were passed, have already dissipated. He 3 relies on the judgment rendered in the case of Om Prakash Aroras & 4 others Vs. The State of Bihar(1986 PLJR 557). Learned counsel appearing on behalf of the opposite parties, on the other hand, states that petitioners did not execute the bond as per the orders. Resultantly steps for issuance of warrant was also taken against him. It is thus contended that a person who is defiant to the orders of the court, may not be given any indulgence. On a consideration of the material available on record and the submissions advanced on behalf of the parties, this court finds that admittedly opposite parties herein has not made out a case that during these periods of six years any attempt to breach the peace was made at the hands of the petitioners herein(2nd party to the proceedings). In fact, there is no counter affidavit filed on behalf of the opposite party to controvert the facts/pleadings. Section 107 of the Code is provided to meet the emergent situations. It embodies a fasciculus of provisions meant only to prevent apprehension of breach of peace. It is not a punitive measures. There is no material on record to demonstrate that during these periods of six years any subsequent attempt was made by the petitioners herein to act in a manner giving rise to apprehension of breach of peace at their hands. This court finds force in the submission of the learned counsel for the petitioners herein that they had rightly challenged the orders impugned and were waiting its disposal. During all 4 these periods they maintained peace in relation to the parties to the dispute as also to the lands in dispute. This court in the case of Om Prakash Aroras & 4 others Vs. The State of Bihar(1986 PLJR 557), held as under: “In addition, the proceeding had been initiated in the year 1981, about five years back and thus it is extremely relevant for consideration as to whether the apprehension of the breach of the peace is still continuing. The basis of a proceeding under section 107 of the Code is only apprehension of the breach of the peace. Under the circumstances, it may be termed to be an urgent preventive measure and not punitive. Therefore, when the very basis of the proceeding is the apprehension of the breach of the peace and in absence of the apprehension, the proceeding in bound to fall down. When such proceeding continues for fairly a long time as is in this case, which is about five years and which can be said to be a too long period, the existence of the phenomenon of apprehension of the breach of the peace cannot be said to be normally existing and still continuing.” Learned counsel for the opposite parties herein has not been able to convince the court that on account of the fact that the petitioners herein had not executed the bond as per the order passed by the learned Executive Magistrate, shall disentitle them from seeking any relief from this court. Consequently this court is convinced that the present orders need to be interfered with. In the result, the application is allowed. The impugned orders passed by the learned Executive Magistrate in Case No. 12(M)/2004 and affirmed by the learned appellate court in Criminal Appeal No. 40/11 of 2005/2005 is hereby quashed and 5 set aside. This court further records that the quashment shall not come in the way of the parties to approach the court for initiation of such proceeding, if the situation so warrants. Sujit (Kishore K.Mandal,J)