Criminal Miscellaneous No.43725 OF 2005 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- 1. AYODHYA PRASAD SON OF LATE CHATURI RAI 2. RAGHUBANSH RAI, SON OF LATE BASUDEO RAI 3. RAM AWATAR PRASAD SON OF LATE R.K. PRASAD 4. RAM DEO RAI SON OF LATE SHIV TAHAL RAI 5. BISHWANATH RAI SON OF LATE BULKAN RAI 6. MAHENDRA RAI SON OF LATE CHANDRADEEP RAI 7. RAM CHANDRA PASWAN SON OF LATE DHUR PASWAN 8. BISHUNI RAI SON OF LATE RAM BALI RAI 9. MILAN RAI SON OF LATE RAM LALL RAI 10. HARI BANSH RAI SON OF LATE BASUDEO RAI 11. SURENDRA RAI SON OF LATE LAXMI RAI ALL 1 TO 11 ARE RESIDENT OF MOHALLA MANDIRI, P.S. BUDHA COLONY, TOWN & DISTRICT PATNA. 12. RAM BABU RAI SON OF LATE AMI RAI, RESIDENT OF MOHALLA DUJRA, P.S. BUDHA COLONY, TOWN AND DISTRICT PATNA. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. RAJENDRA MAHTO SON OF LATE MUNSHI MAHTO 3. JAGAN PASWAN SON OF LATE MANGARU PASWAN 4. JUGAL PASWAN SON OF LATE BADRI PASWAN 5. LAL BABU PASWAN SON OF LATE JIT LALL PASWAN 6. DWARIKA MAHTO 7. BAIJNATH MAHTO BOTH 6 AND 7 ARE SONS OF LATE TAKA MAHTO 8. RAM SHARAN RAI SON OF CHALITAR RAI 9. SUBHASH RAI SON OF LATE RAM CHANDRIKA RAI 10. YADU MAHTO 11. SHEO NANDAN MAHTO BOTH 10 AND 11 ARE SONS OF RAM KHELAWAN MAHTO 12. SHEO JATAN PASWAN SON OF SHEO BALAK PASWAN 13. MUNI LAL RAI, SON OF LATE LOK NATH RAI 14. LAXAMAN RAI SON OF LATE KALICHARAN RAI 15. RAM EQUWAL RAI SON OF LATE BAHADUR RAI 16. DINA NATH RAI SON OF LATE KANHAI RAI 17. SATYA NARAIN RAI SON OF LATE NOKH LALL RAI ALL SERIAL NO.2 TO 17 ARE RESIDENT OF MOHALLA MANDIRI, P.S. BUDHA COLONY, TOWN AND DISTRICT PATNA. 18. YUGAL RAI SON OF RAM BRIKSHA RAI 19. RAMANAND RAI SON OF DEO NATH RAI 20. BANSI RAI SON OF LATE BENGALI RAI 21. JAGENDRA RAI SON OF LATE HARIHAR RAI ALL 18 TO 21 RESIDENTS OF MOHALLA-DUJRA, P.S. BUDHA COLONY, TOWN AND DISTRICT PATNA. - 2 - 22. KANTI PRASAD, SON OF LATE RAM LCHANDRA RAI 23. HARINARAIN YADAV SON OF LATE TULSI RAI ALL 18 TO 23 ARE RESIDENTS OF MOHALLA-MANDIRI, P.S. DUJRA, TOWN AND DISTRICT PATNA. ... ... OPPOSITE PARTIES. ---- For the Petitioners : Mr. Rai Ramesh Prasad,Adv. For O.P. No.2 : Mr. Birendra Nath Mishra,Adv. For O.P. No.11 : Mr. Bajarangi Lal, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Twelve petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of order dated 24.8.2005 passed in Cr. Revision No.207 of 2004 by the Additional Sessions Judge XII, Patna. By the said order, the learned Additional Sessions Judge has rejected the revision petition filed by the petitioners whereby the revisional court has affirmed the order of the learned Executive Magistrate, Sadar, Patna in Case No.590(M) of 2001 and dropped the proceeding initiated under Section 145 of the Code of Criminal Procedure. 2. Short fact of the case is that the petitioners are raiyats of Tauzi No.73, Mauza Chak Amanat Chak Dayanat, Diara; Dujra, Block No.2, Revenue Thana No.139, presently Budha Colony Police - 3 - Station, Sadar Anchal, District Patna, which are recorded in survey records of right and they are descendants and they were in possession of the land in question as claimed by the petitioners. It has further been asserted that due to alluvian and diluvian in the river Ganga the parts of the respective lands of the petitioners merged in the river Ganga, but later on towards south of the respective lands of the petitioners came out of water from Ganga river and thereafter, the petitioners were in peaceful possession over the land in question. However, it was alleged that the opposite parties without any right and title over the land in question started creating trouble in respect of cultivation of the land by the petitioners. It was alleged that while the land was measured by Amin in presence of Circle Officer, the opposite parties never appeared, but they started claiming right and title over the land in question and started creating hindrance in cultivating the land by the petitioners. 3. After noticing apprehension of breech of peace, the petitioners filed a petition before Sub Divisional Magistrate, Sadar, Patna, which was numbered as Case No.590(M) of 2001 for initiating - 4 - proceeding under Section 144 of the Code of Criminal Procedure with respect to Diara land, which had come out of water on the adjacent south of Ganga. The said proceeding was subsequently converted to a proceeding under Section 145 of the Code of Criminal Procedure. However, aggrieved with the order of conversion, the opposite parties filed a revision vide Cr. Revision No.214 of 2002 before the learned Additional District and Sessions Judge XII, Patna vide Cr. Revision No.214 of 2002. The petitioners have brought on record the order dated 20.1.2003 passed by the District and Sessions Judge, Patna in Cr. Revision No.214 of 2002. The learned Additional Sessions Judge-XII, after examining the matter, has rejected the revision petition. Subsequently, the opposite parties appeared before the Executive Magistrate in Case No.590 (M) of 2001 and filed a written statement stating therein that a Title Suit No.20 of 1995 was pending in the court of Sub Judge-VII, Patna in respect of the land in question. After filing the said written statement, the learned Executive Magistrate, by its order dated 20.12.2003, dropped the proceeding, which was initiated in Misc. Case No.590 (M) of 2001. - 5 - 3. Aggrieved with the order of dropping of the proceeding under Section 145 of the Code of Criminal Procedure, by order dated 20.12.2003 passed by Executive Magistrate, the petitioners filed a revision petition vide Cr. Revision No.207 of 2004. The learned Additional Sessions Judge-XII, after hearing the parties and considering the fact that a title suit was already pending in respect of the land in question, he dismissed the revision petition and affirmed the order dated 220.12.2003 passed by Executive Magistrate in Case No.590 (M) of 2001. 4. The petitioners, after losing their claims even before the revisional court, approached this Court by filing the present petition with a view to quash the order dated 24.8.2005 passed in Cr. Revision No.207 of 2004 whereby dropping of Case No.590 (M) of 2001 was confirmed. The present petition was filed on 20.11.2005 and since then, the matter is pending before this Court. 5. Learned counsel for the petitioners, while challenging the order of revisional court dated 24.8.2005, submits that in view of the fact that the title suit i.e. Title Suit No.20 of 1995 was not in between the petitioners and opposite - 6 - parties neither learned Magistrate was justified in droping the proceeding under Section 145 of the Code of Criminal Procedure on the ground of pendency of civil case nor the learned Additional Sessions Judge-XII was justified in rejecting their revision petition and affirming the order of dropping of the proceeding. Learned counsel for the petitioners has further argued that even in the title suit, opposite parties have filed a petition for adding the petitioners as parties in the said suit, but the same prayer was refused by learned Sub Judge-VII, Patna. Accordingly, he has argued that initially, the proceeding in Case No.590 (M) of 2001, which was initiated under Section 145 of the Code of Criminal Procedure was incorrectly and illegally dropped by order dated 20.12.2003 and thereafter, the learned Additional Sessions Judge- XII has committed same error by way of rejecting the revision petition filed by the petitioners vide Cr. Revision No.207 of 2004. Accordingly, learned counsel for the petitioners has prayed for setting aside the order dated 24.8.2005 passed in Cr. Revision No.207 of 2005 by the Additional Sessions Judge-XII, Patna dismissing the revision petition and confirming the order of learned Executive - 7 - Magistrate, Sadar, Patna in Case No.590 (M) of 2001. 6. Learned counsel appearing on behalf of the opposite party nos.2 and 11 has vehemently opposed the prayer of the petitioners. It was mainly prayed by learned counsel for the aforesaid opposite parties that by allowing the petitioners to maintain a proceeding under Section 145 of the Code of Criminal Procedure, will certainly amount to declaring title over the land in question particularly in view of the fact that the proceeding was initially initiated in 2001 and now after expiry of about nine years, it would not be advisable to direct the learned Magistrate to again initiate proceeding under Section 145 of the Code of Criminal Procedure. It was submitted that purport of initiation of proceeding either under Section 144 or 145 of the Code of Criminal Procedure is primarily to prevent apprehension of breech of peace and in the present case, since the proceeding was initially started in the year 2001, it cannot be said that apprehension of breech of peace is still continuing. In any event, according to the learned counsel for the petitioners, if there is such dispute, then same can be finally - 8 - settled by court of competent jurisdiction i.e. Civil Court. It was further submitted that title suit i.e. Title Suit No.20 of 1995 is in relation to the same plot of land and finally it can be adjudicated by the same court. Accordingly, he has prayed for rejection of the present petition. 7. Besides hearing, learned counsel for the parties, I have also examined the materials available on record. It is not in dispute that proceeding in the present case i.e. Misc. Case No.590 (M) of 2001 was initiated long back in the year 2001. Thereafter, the said proceeding continued for some time and finally by order dated 20.12.2003, the proceeding, which was initiated under Section 145 of the Code of Criminal Procedure was already dropped. After expiry of more than six years from the date of dropping of the proceeding, it would not be appropriate to direct the learned Executive Magistrate to again initiate a proceeding under Section 145 of the Code of Criminal Procedure. It is difficult to hold in a positive way that still there is apprehension of breech of peace even after lapse of such a long period. Moreover, if there is any dispute in between the parties, the same can be adjudicated by a court of - 9 - competent jurisdiction and same cannot be circumvented by directing for initiating proceeding under Section 145 of the Code of Criminal Procedure. Moreover, it depends on the situation prevailing over or near the land in question to either initiate such proceeding or not, which is up to the satisfaction of the concerned Magistrate on the basis of such emergent situation. However, in any event, it would not be appropriate to interfere with the order of revisional court or to direct for re-opening the proceeding in Misc. Case No.590 (M) of 2001. 8. Accordingly, the petition stands rejected. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 24th June, 2010 N.A.F.R./N.H.