IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22851 of 2007 1. Md.Zahid Ali @ Md.Zahid 2. Md. Hussain 3. Md. Abid Sons of Late Masiruddin 4. Md. Habib 5. Md. Zeyaul alias Jiyabul, Sons of Taslimuddin 6. Md. Jamaluddin, Son of Liyakat Ali 7. Md. Hasibul ,Son of Jamaluddin All residence of Village-Gidhingola, Police Station Station- Thakurganj, District-Kishanganj (Second Party) . ----------- Petitioners. Versus 1. Mahendra Sah 2. Kunwar Lal Sah 3. Dukha Prasad Sah, Sons of Kala Sah All residents of Village- Janglabhita, Police Station- Thakurganj, District-Kishanganj.( First Party) --------- Opp.Parties. ----------- For the petitioners : Mr. Jajmul Hoda, Advocate For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party nos.1 to 3: Mr. Arun Prasad Ambastha, Advocate. ---------- O R D E R The members of the second party to a proceeding under Section 145 Cr.P.C., being Case No.276 (M) of 2006 have prayed for the quashing of the orders dated 25.8.2006 and 12.3.2007 passed therein by the learned Sub Divisional Magistrate, Kishanganj, whereby he has initiated the proceeding under Section 145 Cr.P.C. and whereby he has refused to cancel the earlier order. The bone of contention appears to be 5 acres of land appertaining to R.S.Khata No.27 , R.S. Plot No.428 /1068 in village- Gidhingola. According to the petitioners only a few days prior to the - 2 - initiation of the instant proceeding a proceeding under Section 144 Cr.P.C., being case no.173 (M) of 2006, had been disposed of holding that while the 1st party had purchased the share of one of the co- sharers in 2004, the second party had purchased from other co-sharers lands in the years 1999 and 2004, and as such a majority of the purchase had been done by the second party prior to the purchase by the first party. It was also found that the claim of both parties on the basis of the sale deeds was correct but the boundary dispute between the parties could not be decided in a proceeding under Section 144 Cr.P.C. It was also the case of the second party that if two sale deeds are executed for the same land then the second sale deed would be invalid and such a dispute could only be decided by the Civil Courts. It has been submitted that the first party never challenged this order before a higher forum and as such the present proceeding was not maintainable. It was further submitted that the police report showed the second party to be in possession of the lands in question and that they had grown tea and banana on those lands. The case of the first party on the contrary is that case no.173(M) of 2006 having been dropped on 14.7.2006 the second party taking advantage of the same became turbulent and they along with a number of armed men came upon the lands of these persons and forcibly wanted to dispossess them as a result whereof there was serious apprehension of breach of the peace and as a matter of fact the police had in their report recommended for action under Section 145 Cr.P.C. - 3 - Admittedly, a proceeding under Section 145 Cr.P.C. is intended to only provide a speedy remedy for the prevention of breaches of peace arising out of disputes relating to immovable property and maintain tranquility. However, to exercise this power, the Magistrate is required to be satisfied that there is indeed a likelihood of a breach of the peace. He ought not to assume jurisdiction in those cases where the suggested apprehension of breach of the peace is merely colourable and made to induce to deal with matters properly cognizable by Civil Courts. In the impugned order, the Magistrate has expressed his satisfaction of the existence of apprehension of breach of the peace on perusal of the facts mentioned in the police report and their recommendation. He also appears justified in passing the second order refusing to cancel the earlier order as no such power is vested in him. That apart, if the second party was placing so much reliance on the order passed in Case No.173 (M) of 2006, it was for them to have moved the Civil Court to sort out the differences and disputes. Due regard being had to the facts and circumstances of the case, I find no merit in this application which is accordingly dismissed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 12th August,2009 Nawal Kishore Singh/ A.F.R.