IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.840 of 2007 AJAY KUMAR SHAHI & ANR Versus STATE OF BIHAR & ANR ----------- 5 16.9.2008 This revision application has been preferred against the order dated 14.3.2007 passed by the Sub-divisional Magistrate, Sadar, Patna thereby a proceeding initially initiated under Section 144 of the Code of Criminal Procedure has been converted into a proceeding under Section 145 of the Code of Criminal Proceeding. Submission of learned counsel for the petitioners is that no proceeding under Section 145 of Code of Criminal Procedure can be initiated in respect of the property in question. Admittedly the property in dispute is a dwelling house and according to the case of opposite party it is joint family property consisting of petitioners and opposite party. In support of it, paragraphs 5 and 6 of the petition filed by opposite party for initiation of proceeding has been referred to which is annexure-2. Reliance has also been placed on a decision reported in 1982 PLJR 109 (Sk. Ibrahim Vs. Sk. Salim and Others). On the other hand, learned counsel for opposite party submitted that even in case of joint possession the proceeding under Section 145 of the Code of Criminal Procedure can be initiated in order to prevent breach of peace. Considered the submission of learned counsel for the parties. Perused the impugned order as also the decision cited by the learned counsel for the petitioners. On perusal of annexure-3, a notice issued under Section 144 - 2 - of the Code of Criminal Procedure, it would appear that the disputed property is three storied house situated over the plot no.134, Khata no. 113 measuring area of 7 dhurs. According to the case of opposite party the house stands in the name of Ajay Kumar Shahi but it was purchased by their father out of the joint family corpus and the property is joint family property of both the parties. It is well settled law that a proceeding under Section 145 of the Code of Criminal Procedure is not maintainable either in respect of dwelling house or property in joint possession of the parties. The decision cited by the petitioners support this view. In paragraph 3 of the decision it has been held as follows; “Under Section 145(4) of the Coe, a Magistrate is required to decide whether any 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, without any reference to the merits of the claims of any of the parties to the right to possess the subject of dispute. This shows that the primary object of this provision is to settle the matter temporarily, so far as the criminal courts are concerned and determine the question as to which of the parties was in actual possession at the date of the preliminary order. It is in this light that the question of possession over the disputed land is decided between parties inter se. But where the allegation by one of the disputing parties is that he is in joint possession over the land in question along with other part, the matter has to be taken out from the ambit of Section 145 of the Code. The Magistrate is not required to decide such a question. If there by any likelihood of breach of the peace on account of such a joint possession, the remedy will surely lie elsewhere. It is, therefore, obvious that on such an allegation a proceeding under Section 145 of the Code should not have been drawn and the same cannot proceed. It may be possible that while finally deciding the proceeding under Section 145 of the Code, the Magistrate finds joint possession. But that is a different matter.” Thus, having regard to the facts and circumstances of the case it is quite apparent that the proceeding initiated under Section 145 of the Code of Criminal Procedure is not maintainable in the eye - 3 - of law. Accordingly, this application is allowed and the impugned order dated 14.3.2007 is hereby set aside. B.Jha (Ghanshyam Prasad)