IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44189 of 2007 SATYA NARAIN SHAHI, Son of Late Darweshwar Narain Shahi, resident of Village – Chaumukh, P.S.- Bochaha, District – Muzaffarpur. ….. Petitioner. Versus 1. THE STATE OF BIHAR 2. MOST. TARA DEVI, Wife of Late Ramsagar Shahi, resident of village – Chaumukh, P.S. – Bochaha, District – Muzaffarpur.. ….. Opp. Parites. For the petitioner : - Sri S.S. Duvedi, Senior Advocate Sri R.S. Duvedi, Advocate Sri L.L. Pandey, Advocate Sri R.K. Dubey, Advocate For the O.P. No. 2 : - Sri Kunwar Nr. Jamuar, Advocate For the State : - Sri Jharkhandi Upadhayay, APP ----------- 04. 21.04.2009 Heard learned counsel for the petitioner, learned counsel for O.P. No. 2 and the learned APP for the State. Petitioner wants quashing of the order dated 7.7.2007 passed in Criminal Revision No. 62 of 2005 by the learned Additional Sessions Judge 5th, Muzaffarpur as also the order dated 26.4.2005 passed in Case No. 830 of 2004 by the learned Sub- divisional Magistrate (East), Muzaffarpur, where a petition dated 19.10.2004 under Section 145 Cr.P.C. filed on behalf of the petitioner has been rejected and said order has been upheld in revision. There is a long narration with regard to the history of the land in question and the dispute which has been carried out as well as correction of records before the various Revenue authorities on behalf of the petitioner and O.P. No. 2. Not only this several efforts have been made by the O.P. either through herself or through her - 2 - son raking up disputes with regard to the possession and apprehension of law and order situation over possession of the land. Learned counsel for the petitioner has brought on record that earlier 144 Cr.P.C. proceeding initiated in the matter on behalf of the son of O.P. No. 2 was dropped way back in the year, 2003 and also in the year, 2004, but that has not settled the issue and now the mother has decided to take charge of the litigation. It is also submitted that on a wireless message furnished by the District Magistrate, the local police investigated and looked into the matter and by virtue of Annexure – 13 categorically reported that there was no law and order situation and that the petitioner was in peaceful possession of the land for quite some time. It is categorically reported in the said report that there is no apprehension of breach of peace, though the police was keeping a vigilant eye on the same. But it seems the Sub-divisional Magistrate taking cognizance of the wireless report and without calling for police report initiated a proceeding under Section 144 and thereafter converted the same under Section 145 and the petition filed for rejection of the same was dismissed by a cryptic order. That was challenged in the revision and the revisional Court has upheld the order mainly on the ground that it is for the concerned Sub- divisional Magistrate to judge the situation about the breach of peace and if a situation of breach of peace arises, then no interference is called for. - 3 - It is urged on behalf of the petitioner that both the orders in question impugned are erroneous and bad in law because the satisfaction of the learned Sub-divisional Magistrate has to be on some basis not mere allegation or assertion that too of the kind. There is repeated effort to invoke the jurisdiction of the SDM under Section 144 of the Cr. P.C. which had failed. The petition of the petitioner filed before the Sub-divisional Magistrate has been rejected by a stroke of pen without any reasons for satisfaction. No doubt the learned Additional Sessions Judge has taken into consideration the rival submissions, but somehow in reaching the conclusion he has lost right of the fact despite having taken note of about the possession and the history of the land in question. Learned counsel for O.P. No. 2 submits that the earlier petition filed by the son was by a co-sharer and that by itself will not preclude the present petitioner from asserting her right. The court does not want to express any opinion on the submission which is fallacious on the face. It is to be seen whether such a proceeding is initiated by interested party only with a oblique motive or there is substantial material in this regard available on record. The Court comes to a considered opinion that the material is otherwise and the order passed by the Sub-divisional Magistrate is a mechanical order without any application of mind. If the above order is erroneous, then revisional order passed in the case cannot stand. This application is allowed. Both the orders dated - 4 - 7.7.2007 and 26.4.2005 passed by the learned Additional Sessions Judge 5th, Muzaffarpur and the Sub- divisional Magistrate (East), Muzaffapur respectively are hereby quashed. It will be open for the parties to take their dispute keeping in mind the long drawn battle to go to a Civil Court of competent jurisdiction to settle the issue instead of burdening the administration by frivolous 144 and 145 proceedings repeatedly. DKS/ (Ajay Kumar Tripathi, J.)