IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.7111 of 2008 PREMA GUPTA, W/O RADHESHYAM GUPTA, RESIDENT OF VILLAGE SHEOHAR, P.S. SHEOHAR, DISTRICT SHEOHAR .. PETITIONER Versus 1. THE STATE OF BIHAR 2. SURAJ SAH, S/O LATE JAISHIRI SAH, RESIDENT OF VILLAGE SHEOHAR, P.S. SHEOHAR, DISTRICT SHEOHAR .. OPPOSITE PARTIES **** /5/ 20.05.2010 Heard the counsel for the parties. 2. This application is directed against the order, dated 11th October, 2007, passed by the Additional Sessions Judge-cum-Fast Track Court, I, Sheohar at Sitamarhi in Cr. Revision No. 55 of 2007/9 of 2007, by which the learned Court below has set aside the order, dated 01.03.2007, passed by the Subdivisional Magistrate, Sheohar, whereby the proceeding under Section 145 of the Criminal Procedure Code was dropped on the ground that the pendency of Title Suit no. 9 of 1995 between the same party with regard to same lands. 3. The learned counsel for the petitioner submits that the learned Court below has held that on the ground that there is apprehension of breach of peace between the parties for possession and this give jurisdiction to the Magistrate to decide 2 the possession and, hence, the order of the Subdivisional Magistrate is not sustainable. However, from the order, itself, it is apparent that if the parties are in litigation before a Civil Court and even the suit is pending for declaration of title and recovery of possession and further the learned Additional Sessions Judge, Fast Track Court, also considered that a petition under Order 39 Rules 1 and 2 of the Civil Procedure Code filed by the plaintiff in the lower Court which was rejected by the trial Court as well as by the Session's Judge and the same is pending before the Hon’ble Court. The learned counsel for the petitioner relied on the decisions reported in 2007(2) P.L.J.R., 110 (Pramod Shankar Prasad Verma Vrs. The State of Bihar & Anr.), 2006(3) P.L.J.R., 334 (Ras Bihari Rai & Ors. Vrs. The State of Bihar & Ors.) and A.I.R. 1985 S.C., 472 (Ram Sumer Puri Mahanth Vrs. The State of Bihar of U.P. & Ors.) when the matter is in litigation before the Civil Court and order having been passed under Order 39 Rules 1 and 2 of the Civil Procedure Code deciding the right of the possession and, hence, the parallel proceeding under Section 145 of the Civil Procedure Code can not be permitted to run concurrently and, hence, the judgment and order of the learned Additional Sessions Judge, Fast Track 3 Court, I, is not sustainable in law. 4. Hence, the impugned order is hereby set aside. This application is allowed. S.A. ( Gopal Prasad, J. )