IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20667 of 2007 Saryug Paswan, son of Chunchun Paswan, village Parsanob, PS Haveli Kharagpur, District Munger – Petitioner. Vs. 1) The State of Bihar, 2) Anchal Adhikari, Haveli Kharagpur Anchal, District Munger. 3) NepalSingh, son of Abadh Lal Singh, 4) Mirtunjay Choudhary, son of Late Harsit Choudhary, 5) Jay Narayan Chaudhary, son of Late Ram Bhajju Choudhary, 6) Dablu Chaudhary, son of Saukhi Choudhary, 7) Jang Bahadur Choudhary, son of Harsahay Choudhary, 8) Bhuneshwar Ram, son of Saukhi Ram, all of village Parsanab, PS Haveli Kharagpur, District Munger – Opp. Parties. 11 24.6.2011 Heard learned counsel for the parties. The petitioner is aggrieved by order, dated 27.7.2001 passed by the Subdivisional Officer, Haveli Kharagpur, Munger in Case No. 208/2001 by which he has initiated proceeding under section 145 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) on an application filed on behalf of the petitioners. While initiating a proceeding under section 145 of the Code, the court has also passed an order under section 146(1) of the Code attaching the properties in question. The said order is mainly under challenge as it has been passed without following the procedure as envisaged under the Code. The power of the Magistrate to initiate a proceeding under section 146 of the Code envisages that the Magistrate should consider that the situation is such that it is essential to attach the land in question during a proceeding under section 145. The Magistrate for this purpose must have some proof that indicates that attachment is the only procedure by which further disputes can 2 be avoided. It does not appear from the order of the court that in fact he had called for the report or what was the circumstances which motivated the Magistrate to attach the land. Counsel for the opposite parties, on the other hand, refers to a letter, dated 18.5.2001 addressed to the Subdivisional Magistrate by the Officer Incharge from which it would appear that the Officer Incharge had filed an application that permission may be granted to him to harvest wheat from the field with respect to Khata no. 171, khesra nos. 1020, 1023 and 1048 and Khata no. 143, khesra nos. 1019, 1025 and 1049 measuring about 119 decimals of land. The order has been passed in 2001. There is a stay by this court and it appears that now the land is lying Parti. Both the parties are claiming title over the land through settlement allegedly made by Darbhanga Maharaj. It appears that there is a dispute with respect to title of the land which can only be effectively decided by filing a regular suit. I accordingly think that it would be proper in the interest of justice that the proceeding under section 145 of the Code should reach its finality and the parties thereto should file their documents and lead evidence with respect to possession regarding the land in question until such title suit is filed. As far as the order concerning the attachment of the land is concerned, this court vacates the said attachment as it cannot continue for more than ten years. The Magistrate will call for a report from the Circle Officer as well as the Officer Incharge of the police station and before 3 passing any further order of attachment. Both the parties are directed to appear before the Subdivisional Officer, Haveli Khagargpur along with a copy of this order within a period of one month from the date of receipt of a copy of this order, so that further action can be taken in the matter by the Subdivisional Officer. The Subdivisional Officer should try to dispose of the matter as expeditiously as possible considering the fact that both the parties are fighting tooth and nail with respect to their title over the land. I make it clear that the Subdivisional Officer will not entertain frivolous petition for time being filed by either of the parties. Counsel for the opposite parties submits that at present the land is being auctioned. Counsel for the petitioner, on the other hand, states that the auction is being made in favour of the opposite parties which counsel for the opposite parties cannot confirm as he has no instruction in this regard. Obviously if true, this is not a fair situation. I accordingly direct that until 145 proceeding and 146 matter is decided, auction should be made for a period of two years in favour of each of the parties. If the Subdivisional Officer finds that the auction was being granted to the opposite parties, i.e. Nepali Singh and others, it would be proper that it should be granted in favour of the petitioner for the next two years i.e. from July 2011 to July 2013. It is hoped that the entire matter would be decided by them. This application is disposed of by quashing that part 4 of the order by which 146 proceeding has been initiated and with a direction to dispose of 145 Cr.P.C. proceeding and to consider whether it is essential to impose section 146(1) Cr.P.C. in the facts of the present case. haque ( Sheema Ali Khan, J.)