IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.625 of 2007 BRAJ KISHORE PRASAD Versus STATE OF BIHAR ----------- 5 10.07.2008 The petitioner is aggrieved by the order dated 30.10.2006 passed by the Executive Magistrate, Danapur in Case No. 296(M) of 2003, Trial No. 17 of 2006 whereby the parties have been asked to produce the evidence for the purpose of a proceeding under Section 147 of the Code of Criminal Procedure. The petitioner is the second party in the proceeding. The First party i.e. the opposite party before this Court had purchased a piece of land belonging to the petitioner appertaining to Plot No. 576 under Khata No. 165 which is situated adjacent East to Plot No. 577 which also belongs to the petitioner. The first party had purchased two kathas of land from the said Plot No. 576 and the rest of the land of Plot No. 576 remained in possession of the petitioner. The first party filed an application before the Maner Police alleging therein that the petitioner was not allowing him to use the land (Rasta) which runs East to West and North to South and is six feet wide and leads to NH-30. It is the claim of the first party that the Rasta was a common passage used by him and the petitioner. On receipt of the complaint the Maner police recommended for a proceeding under Section 144 of the Code of Criminal Procedure. Accordingly show causes were issued to the parties. The proceeding was converted into one under Section 147 of the Code of Criminal Procedure and after notice under Section 147 of Code of Criminal Procedure the parties filed their written statements. It appears that the 2 Maner Police and the Circle Officer submitted reports on 21.1.2006 and 6.4.2005 respectively. The report submitted by the Maner Police Station indicates that there is a road North to the house of the petitioner which leads to NH-30 and it has been also stated that the second party is claiming a “Rasta” to NH-30 which belongs to the second party. The second party has refused to provide a Rasta to the petitioner or to the members of the public on his personal land. Similar is the report of the Circle Officer. Learned counsel for the petitioner has also drawn the Court’s attention to the fact that the first party Janak Kumar Prasad has filed a Title Suit 56 of 2005, the plaint of which is annexed to the application. In the suit the first party has claimed that the petitioner is not allowing the plaintiff first party and others to use the Rasta which according to the first party runs between plot no. 576 and 577 which has been described in schedule 1 of the plaint, and has thus prayed that schedule 1 property of the plaint is a general public passage and the petitioner plaintiff along with the villagers have right title and interest to use schedule 1 property as passage. The second prayer is that it should be declared that the defendants first set i.e. (the petitioner) have no right title and interest to block the schedule 1 property and to amalgamate it with plot 576 and the third prayer is that the defendant first set (i.e. the petitioners) be restrained by an order of temporary injunction from changing the physical features of schedule 1 property of the plaint till the disposal of the suit. The petitioner has already appeared in the suit. Learned counsel for the petitioner on the basis of the aforesaid facts has submitted that since the second party opposite party 3 has already filed a title suit with respect for a declaration to declare the disputed passage as a lane to be utilized by the plaintiff opposite party and the general public and has also prayed for a temporary injunction, the present proceeding under Section 147 Cr.P.C. is not maintainable. This is a fit case wherein the parties should get the matter settled by the civil Court where the suit is pending in view of the fact that all the issues which have been raised in the suit by the first party are the same as have been raised in the proceeding under Section 147 Cr.P.C. The disputes that have been raised in the proceeding under Section 147 Cr.P.C. is whether the land on which the second party opposite party is claiming a passage belongs to the petitioner or has been used as passage (Rasta) by the general public is a question which has to be decided in a civil proceeding as it involves question of title and possession. A proceeding under Section 147 is quasi civil in nature involving rights of the parties and as such should be adjudicated by a Civil Court. In the present case a suit is already pending before a Civil Court. Therefore, the party aggrieved has full opportunity to raise all relevant issues before the Court where the suit is pending. The plaintiff can file an application for injunction if he think it fit and proper. Ordinarily if the questions which are involved in determining the rights of parties with respect to use of a passage are subject matter of a civil proceeding the Executive Magistrate should drop the proceeding under Section 147 Cr.P.C. The learned counsel for the petitioner has submitted that 4 the second party is blocking the way and is creating disturbance leading to breach of peace. If there is real apprehension of breach of peace then the Executive Magistrate may ask both the parties to undertake to maintain peace by resorting to a proceeding under Section 107 Cr.P.C. which will however, be subject to any orders passed in the title suit. The order dated 30.10.2006 passed in Case No. 296 (M) of 2003 in Trial No. 17 of 2006 is hereby quashed. This application is allowed. Sanjay (Sheema Ali Khan, J.)