IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.52169 of 2007 ----------- 1.KAMESHWAR SAO 2. Parmanand Kishor Both are sons of Late Shibu Sao, residents of Village- Sirdulla, P.S. and Anchal-Sirdulla, District-Nawadah ------------------------------ Petitioners Versus 1. THE STATE OF BIHAR 2. Meena Devi W/O Late Madhu Sao, resident of Village- Sirdulla, P.S. -Sirdulla, District-Nawadah ------- Opp.Parties. ----------------- For the petitioners: S/Sri Yogesh Chandra Verma, Sr.Advocate For Opp.Party no.2: S/Sri Awadhesh Kumar Ajay Kumar, Advocates For the State: A.P.P. --------------- 07 29 -10-2010 Heard learned counsel for the petitioners and Opp.Party no.2 as well as the learned Addl.Public Prosecutor appearing on behalf of the State. Two petitioners have approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 10.10.2007 passed by the learned Sub Divisional Magistrate, Rajauli in Case No.407 (M)/07, whereby a proceeding under Section 144 of the Code of Criminal Procedure was converted to a proceeding under Section 145 of the Code of Criminal Procedure. The petitioners have further prayed for quashing of the order dated 1.11.2007 passed by the learned Sessions Judge in Cr.Revision No.98 of 2007. By the said order, the learned Sessions Judge has rejected the revision preferred by the petitioners against the order dated 10.10.2007 passed by the 2 learned Sub Divisional Magistrate, Rajauli in Case No.407 (M)/07. Short fact of the case is that on the basis of an application filed on behalf of petitioners, the police registered a case vide Sirdulla non-F.I.R. Case No.08 of 2007 and after conducting enquiry forwarded a report to the Sub Divisional Magistrate, Rajauli for initiation of a proceeding under Section 144 of the Code of Criminal Procedure and a case vide Case No.407 (M)/07 was initiated under Section 144 of the Code of Criminal Procedure. Subsequently, after appearance of both the parties, i.e. petitioners and Opp.Party no.2, learned Sub Divisional Magistrate, Rajauli was of the opinion that there were apprehension of breach of peace over the disputed land/plots and, as such, the learned Magistrate converted the said proceeding to a proceeding under Section 145 of the Code of Criminal Procedure and directed for issuance of notice to both the parties and fixed the date to 30th October, 2007. Against the order dated 10.10.2007 passed by the learned Sub Divisional Magistrate, Rajauli, both the petitioners preferred a revision petition vide Cr.Revision No.98 of 2007 to the court of learned Sessions Judge, Nawadah. However, the learned Sessions Judge vide its order dated 1.11.2007 rejected the revision petition. Aggrieved with both the orders, i.e. order dated 10.10.2007 passed by the learned Sub Divisional Magistrate, Rajauli and order dated 1.11.2007 passed by the learned Sessions Judge, Nawadah, the petitioners approached this Court by filing the present petition. By order dated 27.2.2008 while issuing notice to Opp.Party no.2, this Court had directed that further proceeding in case No.407 (M) of 2007 3 pending in the court of S.D.M. , Rajauli shall be stayed for one month only. It is made clear that no further proceeding was stayed thereafter. Meaning thereby that after expiry of period of one month, the operation of stay order automatically stood vacated. While challenging both the orders, Sri Yogesh Chandra Verma, learned Senior Counsel appearing on behalf of the petitioners has submitted that petitioner nos.1 and 2 are full brothers and they were full brothers of husband of Opp.Party no.2. It was argued that after the death of husband of Opp.Party no.2, Opp.Party no.2 with the help of local enemy of petitioners started creating unnecessary disturbances and on one occasion, Opp.Party no.2 unauthorizedly put a lock on a clothes shop of petitioner no.2. It was submitted that long back mutual partition had already taken place and all the parties were living separately and peacefully. However, since Opp.Party no.2 locked the shop , they filed an application before the Officer Incharge of Sirdulla ( Nawadah ) Police Station, but the local police in connivance with Opp.Party no.2 sent an incorrect report to the court of the learned Sub Divisional Magistrate, Rajauli with a request to initiate a proceeding under Section 144 of the Code of Criminal Procedure , which was initiated and in similar manner the learned Sub Divisional Magistrate without appreciating the fact has passed the impugned order. Sri Verma, learned Senior Counsel appearing on behalf of the petitioners has relied upon a Judgment of this Court reported in 1982 PLJR 109 (S.K. Ibrahim Vs. S.K.Sarin ). Sri Verma, has argued that in case of joint possession, no proceeding under Section 145 of the Code of Criminal Procedure can be initiated. 4 Learned Senior Counsel for the petitioners has also relied upon a Judgment of this Court, reported in 2007 (1) PLJR 692 (Rabindra Nath Singh Vs. The State of Bihar & Ors.) .It has been submitted that a title dispute cannot be the subject matter of a proceeding under Section 145 of the Code of Criminal Procedure. Learned counsel for the petitioners has further submitted that despite the fact that the petitioners had preferred a revision against the order of the learned Sub Divisional Magistrate, the learned Sessions Judge only on technicality i.e. since the order was an interlocutory order, has rejected the revision petition. Learned Senior Counsel appearing on behalf of the petitioners has also relied on a Judgment of this Court, reported in 1998 (3) PLJR 641 ( Bhola Nath Ojha Vs. State of Bihar & Ors.). It has been submitted that even in case of rejection of Criminal Revision, a petition under Section 482 of the Code of Criminal Procedure can be maintained. Accordingly, it has been prayed to quash both the orders, i.e. order dated 10.10.2007 passed by the learned Sub Divisional Magistrate, Rajauli and order dated 1.112007 passed by the revisional court. In this case, Opp.Party no.2 has appeared through her advocate and she has also filed a counter affidavit. It has been submitted by Sri Awadhesh Kumar, learned counsel appearing on behalf of Opp.Party no.2 that on the one hand , Sri Verma, learned Senior Counsel appearing on behalf of the petitioners has argued that partition had already taken place long back and both the parties were living separately, but contrary to his own stand he has relied on a Judgment of this Court on the point that in a case of joint possession , 5 no proceeding under Section 144 of the Code of Criminal Procedure can be maintained. It has been submitted that once the petitioners have admitted that there were partition; petitioners cannot be allowed to take the plea contrary to their own stand. It has been submitted by learned counsel for Opp.Party no.2 that as both the parties belong to Mitakshara Joint Hindu Family, no partition had taken place between the parties. It has been submitted that after the death of husband of Opp.Party no.2 both the brothers, i.e. petitioners are trying to grab the entire share of Opp.Party no.2. It has further been submitted that the learned Sub Divisional Magistrate, on the basis of police report has rightly initiated a proceeding under Section 144 of the Code of Criminal Procedure and thereafter by the impugned order has correctly converted to a proceeding under Section 145 of the Code of Criminal Procedure. It has further been submitted that the order of the learned Magistrate was challenged by the petitioners by way of filing a criminal revision petition, which stood rejected. After rejection of revision petition, the petitioners are not entitled to maintain the present proceeding. Accordingly, it has been prayed to reject the petition. Besides hearing learned counsel for the parties, I have also perused the materials available on record. By the impugned order i.e. order dated 10.10.2007 passed in Case No.407 (M) of 2007, the learned Sub Divisional Magistrate had converted the proceeding under Section 144 of the Code of Criminal Procedure to a proceeding under Section 145 of the Code of Criminal Procedure on the basis of materials available on record and hearing both the parties.The dispute, 6 it appears from the record, is related with Khata No.147, Plot No.3820, Khata No.663 Plot No.2671 and Khata No.663 Plot No.2672. By the said order, the learned Magistrate had directed for issuance of notice to both the parties and fixed the case to 30.10.2010. Instead of appearing before the learned Magistrate, the petitioners preferred a revision petition vide Cr.Revision No.98 of 2007. The learned Sessions Judge after hearing the parties and considering the apprehension of breach of peace rejected the revision petition. It is not a case that the learned Sessions Judge only on technicality has rejected the revision petition, but from the order passed by the learned Sessions Judge, it is evident that the learned Sessions Judge has examined the materials in detail and thereafter revision petition was rejected. The Court is of the opinion that once the learned Magistrate after being satisfied with the materials available on record had proposed to initiate a proceeding under Section 145 of the Code of Criminal Procedure and directed for issuance of notice to the parties, any of the parties aggrieved with the order were entitled to appear before the learned Magistrate under sub-section (5) of Section 145 of the Code of Criminal Procedure and satisfy the Magistrate that no dispute exists or existed and the learned Magistrate was entitled to cancel the said order after being satisfied. Instead of availing the statutory provision contained in Section 145(5) of the Code of Criminal Procedure, the petitioners preferred a Criminal Revision, which too stood rejected. After rejection of the criminal revision, the petitioners in the garb of filing a petition under Section 482 of the Code of Criminal Procedure approached this Court. This Court is of 7 the opinion that the present petition is in sum and substance a second revision, which is barred under Section 397(3) of the Code of Criminal Procedure. It need not to be elaborated that the Hon’ble Supreme Court in a case reported in (1995) 5 SCC 751 (Deepti alias Arti Rai Vs. Akhil Rai & Ors.) has made it clear that after dismissal of the first revision by the Sessions Court , an inherent power under Section 482 of the Code of Criminal Procedure cannot be utilized for exercising power which are expressly barred by the Code. Accordingly, without going into the detail of the case on merit, the Court is of the opinion that both the orders i.e. order dated 10.10.2007 passed in Case No.407(M) of 2007 by the learned Sub Divisional Magistrate, Rajauli and order dated 1.11.2007 passed in Cr.Revision No.98 of 2007 by the learned Sessions Judge, Nawadah require no interference. Accordingly, the petition is rejected. NKS/- ( Rakesh Kumar, J.)