IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.342 of 2008 1. MOST. BIBI SAUKAN WIDOW OF LATE SK. ISTIYAQUE ALAM. 2. BIBI NAYUM NISHA 3. BIBI SAHARUN MISHA 4. BIBI SAMUN NISHA NOS. 2 TO 4 ALL DAUGHTERS OF LATE SK. ISTIYAQUE ALL R/O- PIRPAINTEE BAZAR, P.S.- PIRPAINTEE, DISTRICT- BHAGALPUR .. Petitioners Versus 1. THE STATE OF BIHAR 2. SK. ILIYASH SON OF LATE MUSTAFA 3. BIBI AESHA KHATOON, WIFE OF SK. ILIYASH. 4. SK. AMRUL. 5. SK. AALIM 6. SK. KALIM 7. SK. SALIM 8. SK. JALIL NOS. 4 TO 8 SONS OF SK. ILIYASH, NOS. 2 TO 8 ALL RESIDENTS OF VILLAGE PIRPAINTY BAZAR, P.S.- PIRPAINTY, DISTRICT- BHAGALPUR … Opposite parties For the petitioners : Mr. Krishna Mohan, Advocate For the O.P. : Mr. Adityanath Pandey, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ----------- 4 24.09.2010 Heard learned counsel for the petitioners and learned counsel for the opposite parties. First party to the proceeding in the court below bearing Misc. Case no. 368 of 2006 are the petitioners. Second party to the said proceeding are the opposite parties. Petitioners are aggrieved by the order dated 27.2.2008 passed on Cr. Rev. no. 162 of 2007/Tr. No. 49 of 2007 (Sk. Iliyas and Ors versus State of Bihar and Ors) by which the same has been allowed and the initial order dated 23.5.2007 passed by learned S.D.M., Kahalgaon under Section 146(1) of Code of Criminal Procedure (for short the Code) has been set aside. 2 While assailing the order, learned counsel for the petitioners submits that when the impugned order was passed, the sole opposite party to the aforesaid application namely Istiyaq Alam was dead. No application for substitution was filed and, therefore, no notice was issued to the legal heirs of aforesaid Istiyaq Alam and the impugned order was passed. According to him, order shall be hit by proviso to Section 398 of the Code. Learned counsel for the opposite parties (second party in the court below), on the other hand, submits that learned revisional court has taken note of two facts while allowing the revision application. It has been found that the first party had already filed a Title Suit no. 85 of 1995 in which a petition was filed on behalf of the petitioner for appointment of a receiver which was considered and rejected by the learned Munsif on 20.4.2006. Learned revisional court has also noticed that the order impugned dated 23.5.2007 was passed without affording the second party an opportunity to file written statement. Relying on a judgment of this Court rendered in the case of Ras Bihari Rai versus State of Bihar reported in 2006 (3) P.L.J.R. 334, it is submitted that once it is found from the record that a civil litigation is already pending in a court of competent jurisdiction between the parties, any proceeding under Section 145 and 146 shall not be maintainable. The said view has been taken on the premise that if any event arises to meet the emergency situation, the parties shall always be in a position to approach the Civil Court for interim/appropriate orders. 3 I have considered the submissions advanced on behalf of the parties. Admittedly, the first party has already filed a Civil suit being Title Suit 85 of 1995. Parties to the present proceeding are parties in the said proceeding. It appears from the record that the first party had filed an application for appointment of receiver in the said pending suit which was considered and having regard to the materials on record, refused/rejected by learned Munsif. It further appears that the order impugned dated 23.5.2007 was passed without affording the opposite parties (second party) to file written statement. This Court is of the view that if the impugned order dated 27.2.2008 passed on Cr. Rev no. 162 of 2007/Tr. No. 49 of 2007 is interfered with and quashed accepting the submission of learned counsel for the petitioners that the same was passed against a dead person and/or without complying with the provisions as contained in proviso to Section 398, the effect would be that order dated 23.5.2007 shall revive. This Court is of the view that in the facts and circumstances of the case, proceeding initiated by learned S.D.M. and the order dated 23.5.2007 passed therein was itself contrary to law. In that view of the matter, this Court declines to interfere with the order impugned dated 27.2.2008 passed in Cr. Rev. no. 162 of 2007. Application is dismissed. pkj ( Kishore K. Mandal, J. )