IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13859 of 2010 AWADHESH KUMAR SINGH Versus THE STATE OF BIHAR & ANR ----------- 3. 21.6.2010. Heard Sri Chitranjan Sinha, Sr.Advocate for the petitioner, Sri Kanhaiya Prasad Singh, Sr.Advocate for the Opposite Party no.2 and also Sri Jharkhandi Upadhyay for the State. This petition has to be allowed on one ground alone that after receiving the impugned order which was passed by the learned Sessions Judge, Purnea on 9.2.2010 in Cr.Revision Petition No.28 of 2010, the learned S.D.M., Sadar, Purnea initiated the proceedings under Section 145 Cr.P.C. by order dated 18.3.2010. That order has been brought on record by filing I.A.No.910 of 2010. It has been pointed out that not only the Executive Magistrate proceeded to initiating a fresh proceedings under Section 145 Cr.P.C. but attached the land in dispute under Section 146 Cr.P.C. also. After having perused the order initiating the proceedings under Section 145 Cr.P.C., I find that the learned S.D.M., Sadar, Purnea was influenced more by the observations of the learned Sessions Judge in Cr.Rev.No.28 of - 2 - 2010 when the learned Judge was recording some facts which were not properly admitted by the parties, that there was a disputed question of possession giving rise to an apprehension of the breach of the peace at the spot and further that the situation had worsened to such an extent that a state of emergency had arisen there. It is very much indicated at least in two paragraphs of the order initiating proceedings under Section 145 Cr.P.C. that the observations of the learned Sessions Judge, Purnea were the basis for initiating the proceedings. The language of Section 145 Cr.P.C. indicates that the Executive Magistrate has to be satisfied from a report of a police officer or upon other information, that a dispute, likely to cause a breach of the peace, existed concerning any land or water, etc within his local jurisdiction and on being so satisfied the Executive Magistrate may pass an order under Section 145(1)of the Cr.P.C. calling upon the parties to the dispute to put in their written statements in respect of their respective claims over the dispute properties. One may argue that the observations of the learned Sessions Judge - 3 - could be covered by the term ‘other information’ but when the learned court below, i.e., S.D.M., Purnea was reading it as an order to him, as he appears mentioning in his order dated 18.3.2010, then it could safely be said that it was not an order passed after due application of his judicial mind, rather he was passing the order in obedience to the orders of the learned Sessions Judge. This court is clear in its mind in recording that the learned S.D.M., Purnea was not applying his judicial mind to the facts of the case and it could not be said that there were factual data available to him for being placed properly as per the provisions of Section 145 of the Cr.P.c. so as to be satisfied about the disputed question of possession between the parties and the apprehension that the peace may be breached on that account. This court is of the opinion that the order dated 18.3.2010 was passed in complete derogation of the provisions of Section 145(1) of the Cr.P.C. and as such subsequent orders, which may be under Section 146 Cr.P.C., also may not be sustained. In the light of the above findings, the whole proceedings initiated by case no.08M of - 4 - 2010 by the learned S.D.M, Sadar, Purnea is hereby quashed. It is not disputed that a suit had been initiated by Opposite Party no.2 in which questions both of possession and title, have been raised and issues are likely to be framed on those counts. It goes without saying that it could be futile for any Executive Magistrates to be cognizant of those issues which have already been taken cognizance of by a competent Civil Court and as such no further proceedings under Section 145 Cr.P.C. shall be initiated. If any breach of peace is apprehended, then resort shall be made to Section 107 of the Cr.P.C. for maintaining the law and order situation on the spot. The suit bearing Title Suit No.114 of 2010 is reported to be pending before Sub-Judge, Purnea and it is expected that the learned Sub- Judge, Purnea shall pay proper attention to the disposal of that suit in the light of the present order. B.Kr. ( Dharnidhar Jha, J. )