IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38546 of 2009 1. RAMAKANT RAI, SON OF LATE RAM BISHUN RAI 2. SAKALDEV RAI, SON OF SANJEEWAN RAI 3. RAM BRIKSHA RAI, SON OF SITARAM RAI 4. DHIRAJ KUMAR, SON OF RAMAKANT RAI ALL ARE RESIDENT OF NAYA TOLA SARISTABAD ROAD, P.O. G.P.O. PATNA, P.S. GARDANIBAGH, DISTRICT PATNA. ----- PETITIONERS Versus 1. THE STATE OF BIHAR 2. SEVA RAI, SON OF LATE DAYALI RAI 3. RAVINDRA RAI, SON OF SEVA RAI 2 AND 3 ARE RESIDENT OF MOHALLA CHANGAR, P.O. ASHOKNAGAR, P.S. KANKARBAGH, DISTRICT PATNA. ----- OPPOSITE PARTIES 2 23.11.2009 By order dated 16.9.1997 this Court had remanded a 145 Cr.P.C. proceeding to be decided by the S.D.O. after considering the material on record. After 26 years an order has been passed on 20.7.2009 stating therein that since 26 years has elapsed, it would not be possible to decide the case without taking fresh material into consideration. For this purpose reference may be made to Section 145 of the Code of Criminal Procedure which envisages that whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Sub-section (4) of Section 145 further states that the Magistrate shall then, without reference to the merits or the claims of any of the parties, to a right to possess the subject of dispute, peruse 2 the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute. The question is that after 26 years can there still be a issue relating to apprehension of breach of peace? Both the parties have let the matter remain pending and the Executive Magistrate is quite right in thinking that it is virtually impossible to decide the matter after a lapse of 26 years. In the circumstances, the Executive Magistrate instead of taking fresh evidence in the same proceeding may call upon both the parties and hear them with respect to proceeding in the present case considering the delay in deciding the matter. If the Executive Magistrate is convinced that there is an apprehension of breach of peace with respect to the subject matter of the proceeding then he should proceed as per the direction of the High Court on the evidence which is already on record. In the event the Executive Magistrate finds that the issues are now stale by virtue of lapse of 26 years, he may drop the proceeding, with leave to the parties to approach the appropriate authorities if there is apprehension of breach of peace with respect to the property which would necessitate the institution of a fresh proceeding. This application is disposed of with the aforesaid observations. Sanjay (Sheema Ali Khan, J.)